Tuesday, August 22, 2006

the mitzvah to obey chazal and ma'achilin lo hakal hakal techila

The Minchas Chinuch presents a radical chiddush in this week’s parsha. The halacha is that if someone is dangerously ill and issurim must be violated to help that person, it is better to minimize the extent of the issurim violated – ma’achilin lo hakal hakal techila, we feed the ill person the lighter issur first. The Rishonim debate how one measures which actions entail greater or lesser issurim – is it the number of issurim violated or the severity of the issur? For the sake of his argument the Minchas Chinuch presents the Ran’s view that the number of issurim violated is the determining criteria. If so, given that in our parsha there is an issur of ‘lo tasur’ for violating the words of Chazal and a mitzvas aseh to listen to the words of Chazal, one might very well have a situation where a law derived from a derasha carries more weight than a law which is explicit in a pasuk. Minchas Chinuch’s example: if one eats a non-kosher bird in violation of explicit pesukim in the Torah, one violates a lav and and an aseh (the mitzvas aseh of eating only kosher food). The gemara learns from a derasha that that there is a lav and mitzvas aseh not to eat the bird which was shechted as part of the ceremony of being metaheir a metzora. Since these two issurim are derived from a derasha, violating these issurim would also be a violation of the mitzvas aseh of listening to Chazal and the lav of disobeying their words. So 4 issurim to 2, it is better to feed a sick person a non-kosher bird than to feed a sick person a kosher bird shechted properly which was used for taharas metzora!
There are a few reasons one might argue on this chiddush, but I won’t spoil the fun of letting you mull it over. R’ Elchanan discusses in Kuntres Divrei Sofrim 1:35-39.

14 comments:

  1. Reb Chaim:

    I ask this question out of ignorance: would there not be six issurim involved, since the transgression of the negative and positive commandments of lo sasur and listening to the Chochamim, are only engendered by the trangressions of the Rabbinic enactments?

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  2. By the bird which is shechuta, the issur lav and aseh is based on a derasha. So you have 1) the lav from a derasha 2) the aseh from a derasha 3) the mitzvah lishmo divrei chachamim 4) the lav of lo tasur. I don't follow where you are getting an additional 2 issurim from.

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  3. Bill Selliger4:46 PM

    If a halacha is based on a drasha, does that render it "divrei chachamim"? I think the assumption among the Orthodox is that drashos were niskabel - along with the rest of the Torah - at Sinai. If so, perhaps that is not the intention of the issur of "lo sasur"?

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  4. anon15:27 PM

    Bill -

    see the Rambam perek 2 halacha 1 of hilchos mamrim:

    בית דין הגדול שדרשו באחת מן המידות כפי מה שנראה בעיניהם שהדין כך, ודנו דין, ועמד אחריהם בית דין אחר, ונראה לו טעם אחר לסתור אותו הדין--הרי זה סותר, ודן כפי מה שייראה בעיניו: שנאמר "אל השופט, אשר יהיה בימים ההם" (דברים יז,ט)--אין אתה חייב ללכת, אלא אחר בית דין שבדורך.

    Thus a halacha that was derived from a midah shehaTorah nidreshes can reversed by a beis din and hence not necessarily niskabel at Sinai (and in fact these types of drasho do not have the added requirement that the reversing beis din be gadol be-chochmah uveminyan, unlike a gezerah, see halacha 2 there). See also the Ohr Sameach there in Mamrim, who explains that is why the Rambam refers to things learned from a derasha as divrei sofrim (e.g. Rambam's famous description of kidushei kesef as "divrei sofrim"), not because they are not deoraysa but rather that they are determined (and can be reversed by) a later beis din.

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  5. 'Assumption among the Orthodox'? Bill, give me a break - this is a minchas chinuch. Surely you acknowledge a difference between something you can read in the chumash with your own eyes and something you must rely on the oral transmission of Chazal to tell you is correct. The samchut for that tradition, what invests it with the authority of Torah law, is the halachos of lo tasur and the mitzvah to listen to the words of Chazal - otherwise why should listen to it? Every derasha implicitely needs lo tasur and the mitzvah of eilav tishma'un to justify itself.

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  6. Bill Selliger7:20 PM

    Anon1 and Chaim:

    At the end of the day, the drasha that you are adhering to - - - did Hashem transmit that halacha to Moshe at Sinai or not? If the answer is yes, my point remains valid. I am willing to accept a "no" as well, but we'll have to reconcile that "no" with Brachos 5a.

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  7. Hate to interrupt, but is Bill orthodox? I never saw a non-orthodox person arguing lamdus before. Ain Bais Medrash bli chiddush:)

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  8. Ben, I hope you are not serious. Ben is wondering if Bill is Orthodox, Bill is wondering if someone else is Orthodox (not sure who), and I am wondering why I am writing this at 11:30 at night.
    Anyway, Bill, are you asking a question on the Rambam who holds derashos fall under lo tasur, on the Minchas Chinuch who holds derashos generate additional lavim, or on me who are just so far quoting them MC? I have been thinking about it more and looking into the issue you raised about the origin of derashos, but I do not understand what it has to do with the Minchas Chinuch on lo tasur.

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  9. Bill Selliger7:29 AM

    Here's the deal: Bill struggles mightily to adhere to all the mitzvos, but often (read: usually)fails miserably. Does that make him Orthodox?

    My comment above regarding the "assumption among the Orthodox" was intended to be tongue-in-cheek. I guess I'm just not that funny. My wife tells me that all the time. The truth hurts.

    I am obviously not challenging the Minchas Chinuch's emunah. My problem with the MC is as follows:

    The MC assumes that "lo tasur" and "eilav tishma'un" include drashos chazal (not g'zairos d'rabonon, but bona-fide d'rashos). I am merely asking if that is a fair assumption, given the fact that the gemara in Brachos 5a relates that everything was transmitted to Moshe at Sinai, perhaps d'rashos do not fall under the rubric of "divrei chachomim" that these p'sukim are referring to. PERHAPS. In other words, maybe one is not over “lo tasur” for eating the bird of the metzorah.

    I am not convinced by the Rambam that Anon1 cited earlier – especially in light of the Rambam’s shita that “lo tasur” applies to g'zairos d'rabonon.

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  10. anon19:26 AM

    Bill,

    what does the Rambam in Mamrim mean?

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  11. Bill Selliger9:48 AM

    The Rambam isolates the words "bayamim haheim" to teach you the specific requirement of adhering to the laws stipulated by the current beis din...but that does not mean that whatever the beis din darshens is included under the aegis of "lo tasur".

    Now my turn: What does the MC do with the gemara in Brachos? I guess it's possible that it could be transitted at Sinai and still be considered "divrei chachamim", but it takes some thought.

    According to the MC's way of thinking, a woman who keeps Shabbos is mikayeim more mitzvos than a man, because "kol sheyeshno b'shamor..." is an added aseh of "eilav tishma'un". Also, every time she does not perform a mitzvas aseh sh'hazman grama she is being mikayeim the same aseh...I have a hard time accepting that.

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  12. >>>but that does not mean that whatever the beis din darshens is included under the aegis of "lo tasur".

    See the Ramban, page 12 in the standard edition of the sefer hamitzvos, second wide line onward. Lo taur is the issur of zakein mamrei, which applies specifically to uprooting derashos, not to arguing about what is mefurash b'kra. See also the Netziv on the pasuk. You are mixing two categories: d'oraysa vs. derabbanan and torah sheb'ksav vs. torah sheba'al peh. Lo tasur applies to all torah sheba'al peh, even if the law is a derasha d'oraysa.
    Your point about women observing Shabbos based on the MC sounds correct - so you need a sevara why the MC's reasoning is wrong! That was the point of the posting to begin with. You can cheat and look at R' Elchanan, or you have to come up with something.

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  13. Bill Selliger3:27 PM

    So stam an avaryan that doesn't comply with a drasha - according to the MC - is a zakein mamre?!

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  14. You are on the road to one of R' Elchanan's teirutzim - namely, you only violate lo tasur through an act of rebellion, not stam through an aveira. (The MC seems to play this type of game other places as well, e.g. questions like why is every ba'al aveira also not guilty of violating words of a navi - moshe rabeinu?) He has one or two other approaches as well.

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