Wednesday, January 07, 2009

bein hashemashos - why not use chazakah to resolve the safeik?

I'm going to break this idea up into the easy part and the hard part. The easy part I call easy because I have answers; the hard part is where I'm stumped.

Last Shabbos I discussed with my son the following question quoted by R' Scheinberg in his Mishmeres Chaim (a sefer which, along with the Mefa'aneyach Tzefunos, is a staple of oneg Shabbos): A basic principle in halacha is the idea of chazakah -- the assumption that a status quo is maintained until proven otherwise. For example, a kohen who sees a nega on the walls of a house may close the door and declare the house tamei without having to worry that the size or shape of the nega changed between the time of his observation and the time of his declaration. If so, why do we treat bein hashemashos as a period of safeik yom safeik layla -- why not say that since it had been day until the moment of twilight, the chazakah of it being day continues until proven otherwise at which point it become definitely night? Why is there a twilight period of halachic doubt if it is day/night when we can resolve that doubt using the rule of chazakah?

I have at least three good answers to this question -- one suggested by my wife, one by my son, and one by myself, roughly corresponding to a sevara, to a Rogatchover-ish idea, and a Brisker-type solution. I don't want to make it too easy, so I'm going to give away the sevara solution and you can work on the others. Tosfos (Gitin 2b) writes that chazakah cannot be applied to a situation which by definition is subject to change, e.g. a nidah is not considered to have a chezkas issur because we know at some point that she will stop seeing blood. Here too, we know that it will not remain day forever and the sun will eventually set; therefore, the status of day cannot be defined as something which is called a chazakah.

Feel free to comment away if you can think of a Rogatchover-ish or Brisker answer or even better, a pilpul answer, and then fasten your seat belts for part II.

10 comments:

  1. IIRC I believe that the Rav ztl in the yahrzeit shiur on yom ve-laylah explains that that bein hashemashos is by definition a mixed period of day and night because the Torah bases the distinction between day and night on two separate criteria. One is light and darkness and the other being the rising and setting of the sun. During the period in between those two (bein hashemashos) it is inherently a halachic safeik. Hence chazakah won't help here.

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  2. That was my Brisker answer - bh"sh has a "din safeik" and is by definition a synthesis of day/night as opposed to a true safeik.

    This is a good one to use in other places as well, e.g. what is the status of a chatzi-eved chatzi-ben chorin.

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  3. Anonymous12:58 PM

    General unrelated question - halakhically, if there is a rov, is any particular situation still a safek, or do we consider rov to establish metsius? For example, if you have a safek issur which is rov of a mixture, would you say it is a sfeik sfeika to partake of something from the mixture since maybe it is the miut and maybe it isn't assur at all?

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  4. Or one could argue that Ben Hashemashot is a separate category entirely with its own unique dinim which generates sefeqot in practice because of its failure to fall under the headings of "Day" or "Night" of which it is actually NEITHER. This would explain unusual phenomena such as the fact that gezerot derabbanan don't apply during ben hashemashot, apparently because they were not gozer on those time periods and this would have required a separate gezera altogether, yielding a gezera l'gezera. I believe I saw an approach like this in some of R' Chait's notes on Masechet Shabbat from 30 years ago. But I may be misremembering so don't hold him accountable for my errors.

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  5. Anonymous, I'm not sure about your case because even if you have a vaday issur in rov it would be bateil, so what do you need the sfeik sfeika for? There is a lot of discussion in general over whether rov means it is as if the safeik no longer exists or whether the safeik is still there but we ignore it. You may want to read this post:
    http://divreichaim.blogspot.com/2008/07/ain-holchin-bmamon-achar-harov.html

    RJM - sounds like this is the same idea of din safeik that is found in one of the shiurim l'zecher aba mari.

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  6. anon11:29 PM

    Kimdumani that the Shach in the klalei sfek sfeika discuss Anonymous's case and I believe maintains that it is not a sfek sfeika. But I don't remember for sure. Mareh makom ani lecha

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  7. Anonymous1:55 PM

    I meant when the safek issur IS the rov, so it wouldn't be batel.

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  8. I'm still not sure I am following the case, but it sounds like you are raising the issue of combining safeik b'guf and safeik b'ta'aroves - see Tos. Beitzah 3b d"h acheiros and the Maharashal there. This is a big machlokes rishonim over whether we would first pasken on the piece of rov issur and define it as a vaday and then treat the ta'aroves as a seperate safeik (which is then assur) or whether you could be mitztaref the sfeikos together. I think there is a Rashba in Toras haBayis as well, but have not looked it up in ages. Good topic for another post.

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  9. Maybe chazaka only works on an external din but not on a m'tzeius. (It's a chiluk, but I haven't thought about whether it's m'chaleik)

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  10. Not sure what you mean by that - how is bein hashemashos different than the "metziyus" of a nega on a house where chazakah does work, or dam nidah where is would work if not for chazakah he-asuya l'histanos?

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