Thursday, December 10, 2009

ain issur chal al issur and R' Shimon's derech halimud

Some bookstores (e.g. The Strand in NYC) were meant for browsers more than buyers. The internet allows for virtual browsing, and is the sort of site where treasures are often found. I recently chanced on a Sefer haYovel published in honor of R' Shimon Shkop’s fiftieth year as Rosh Yeshiva that is filled both with divrei halacha as well as student’s reminisces worth taking a look at.

The first essay, written by Rav Unterman, describes the beauty of R’ Shimon’s analytical style, which he illustrates (p. 14) by recalling a shiur that R’ Shimon gave one Shavuos morning. The topic of the shiur was the following question of the Sha'ar haMelech: An issur cannot prohibit something which is already prohibited -- ain issur chal al issur -- except in the special circumstance that the new issur adds something not included in the existing one. If an animal died and became neveilah on Yom Kippur, the issur neveilah is not chal on the meat because all food, meat included, is already prohibited because it's Yom Kippur. The Sha’ar haMelech writes that he does not understand why this should be the case. He reasons as follows: Eating even a chatzi shiur of food is prohibited on Yom Kippur, but there is no punishment for eating less than a k’koseves hagasah. However, the issur neveilah is punishable with malkos if one eats even a k’zayis, which is less than a k’koseves. Since the issur neveilah adds the potential for punishment for eating a lesser amount, it should apply on top of and in addition to the issur achila of Yom Kippur.

How do we know adding the potential for punishment alone allows for an assur to be chal on top of another issur? From the following seemingly parallel case: if a person takes a shevua not to eat a chatzi zayis of neveilah, the shevua is chal. Even though eating a chatzi shiur of neveilah is already prohibited, there is no punishment unless a full k’zayis is eaten. Since the shevua adds the potential for punishment for eating even a chatzi shiur (for violating the shevua), it is chal on top of the existing issur neveilah.

Concludes the Sha'as haMelech: If the issur of shevua is chal on top of the issur neveilah because it adds the potential for punishment for eating even a smaller shiur, why is the issur neveilah not chal on top of the issur achila of Yom Kippur because it adds the potential for punishment for a eating even smaller shiur?

Rav Unterman writes that R’ Shimon’s solution to this question so impressed the listeners that they felt there was no question that his derech halimud was founded on indisputable truths.

So, here’s a chance to test your power of reasoning – what's the teirutz? No bekiyus required – you have all the facts you need at your disposal, and you have the additional advantage of a living a few decades after R' Shimon's derech has been perculating through the yeshiva system and has had a chance to reach our ears in one form or another of a shiur or chaburah. (I’m willing to bet that some of you who do come up with an answer will either find a Brisker way out or frame an answer similar to R’ Shimon’s in Brisker-garb because most of us have been brainwashed as Briskers, but we shall see : )

My son is has gotten enough of a feel for R’ Shimon’s derech from fielding these type questions (I usually hint to him in advance that “It’s a R’ Shimon question” or “It’s a R’ Chaim” so he develops a sense for what different types of questions/answers to expect) that the first thing he said to me was, “Let me guess – it has something to do with the “sibas ha’issur.” Those are indeed the magic words that let you into R’ Shimon’s mind. Now you just need to figure our the rest : )

I’ll bli neder post the solution at some point soon. Why knows? If this made such an impression on R' Unterman, who was a gavra rabbah himself, maybe it will inspire me and you to crack open the Sha'rei Yosher a little more often.


  1. Well, to start off, you have to say that "adding to the possibility of punishment" can't be enough to make an issue be chal. So . . .

    How about this? In the case of Yom Kippur, the cheftza - the meat is already assur to be eaten. Therefore, the issur n'veilah - which would render the meat assur to be eaten - cannot be chal on it, because it adds nothing; the fact that you would get punished for "reason 2 for the meat to be assur" before "reason 1" is irrelevant.

    In the case of a shvua, the shvua does not create a chalos shem of issur in the meat; rather, it establishes a set of conditions applicable to the person making the shvua. The shvua "I will not eat a chatzi k'zayis of n'veilah" is, in essence, a declaration that "if I eat a chatzi k'zayis of n'veilah, I should get malkos" - i.e. it creates a new state in the gavra making the shvua. In other words, the shvua isn't creating an issur that's chal in the meat, but a status that's chal on the individual making the sh'vua, and it isn't a case of "issur chal al issur" at all.

    Purely off the top of my head, so I assume there's some obvious problem I'm missing :)

  2. One more thing - to the obvious question of "so why is a shvua not to eat a c'zayis or more of nveilah not chal", the answer I'd give is because that creates no new state in the gavra; you are already subject to punishment for eating a c'zayis, so your shvua does not have any affect on your status at all.

  3. A gavra/chefzta split -- pure Brisk! I knew it was coming. But in Telz the derech was a little different, so stay tuned for R' Shimon's answer.

  4. Anonymous4:03 PM

    in order for a new issur to be chal, it has to be a different type of issur from the first. both yom kippur and neveilah are issurei achilah. however a shevuah on a nevilah isnt an issurei achilah (acc to the lamdus i think in achiezer 3 21) that besides for the chazi shiur taking on the status as the issur, theres also a new issur from the ribui of kol chelev.
    however, i think this approach would be "mufrach" from dif gemaras i.e. discussion of ain issur etc by trefiah and nevelah in beg. of perek gid hanasheh.

  5. just because they have different punishmentsand shiurim, doesn't mean they don't share the same issur achila,