Tuesday, September 06, 2011

can a din derabbanan be more chamur than a din d'oraysa?

The Minchas Chinuch has a paradoxical chiddush: Since every violation of a din derabbanan is a violation of both lo tasur and v'asisa al pi hadavar asher yorucha, it comes out that a din derabbanan is more chamur than a violation of a single lav d'oraysa (2 issurim vs. 1). Nafka minah: Where there is a choice between two prohibited foods, a choleh should always be given the less severe issur to eat -- ma'achilin lo ha'kal ha'kal techila. Given a choice between eating a food that is assur m'derabbanan and a food that is assur mdoraysa, the Minchas Chinuch suggests better choice would be to eat the food assur m'doraysa, as that would violate only a single lav instead of two.

The footnotes of the new Minchas Chinuch point you to a few places where R' Elchanan proves that the din d'oraysa is in fact more chamur. R' Noson Gestetner in his L'Horos Noson (the perusal of which makes for oneg Shabbos and which is available online here) explains why. The Rishonim discuss whether it would be better to shecht an animal on Shabbos to obtain kosher food or whether it would be better to feed a choleh neveilah. The Rosh writes that it is better to break Shabbos. Even though the punishment for breaking Shabbos is far more severe (misah) than the punishment for eating neveilah, the issur of Shabbos is extrinsic to the food itself - it's like a lion that blocks the way to a good meal. Neveilah, however, is like inedible, not merely inaccessible, food. Here too, issurei derabbanan are issurei gavra (see R' Yosef Engel in Esvan D'Oraysa who discusses this at length) that prevent access to the food. The issur Torah on the food taints the cheftza of the meal itself.

While the lomdus sounds nice, I don't understand what he means. The point of ma'achilin lo ha'kal ha'kal techila seems to me to be to minimize the issurim being done -- it's not a specific din in issurei achila, but is a more general concept: Don't be a big rasha when you can be a smaller one. What difference does it make if issurei derabbanan are issurei gavra or issurei cheftza -- bottom line remains that eating food assur mderabbanan entails violating two issurim while eating neveilah or some other food that is asur m'doraysa entails violating only one issur.

As for why violating Shabbos to obtain kosher food is less severe than eating neveilah, I seem to recall a Netziv which explains that issurei achilah have the added downside of corrupting the neshoma in a way other issurim (even with more severe punishments) do not. Those learning daf yomi may recall from early in Chulin that Hashem does not allow tzadikim to even inadvertently violate issurim. Tosfos holds that this special promise applies only to issureiachila, not to all cases. This underscores the special danger posed by foodstuff.


  1. Anonymous3:37 AM

    simple-mindedly speaking, is this
    struggle really necessary?
    as one's neder may be annulled
    "had he only known x at the time",
    could we say that the rabbis would suspend any particular din of their own should it ever hit a din d'oraysa, as they never meant to override such? or might the rabbis set rules al tnai that those rules stand down before His, should the 2 ever conflict?

    altitudinally-speaking, were the
    very rabbis who ruled food A assur themselves serving the sick, how could they offer instead food B, an issur m'doraysa, given that the Shechina dwells at the choleh's head? they musn't sit so high!

  2. The way RTwersky explained it (many years ago) based on the Maharam quoted in the Rosh in Yoma is that where there is an issur gavra and it is removed due to pikuach nefesh, it is the equivalent of hutrah (the Maharam quotes the example of ochel nefesh on yom tov), whereas with an issur cheftza, even if the issur is removed, it still remains a cheftza shel issur and therefore it is like dechuya (this doesnt depend on the question whether pikuach nefesh is hutrah or dechuya per se, but just as analogy to the idea behind it).

  3. Anon1 -- why can't you just as easily say that removing the issur cheftza means the object is no longer a cheftza d'isura? I don't see it. How can you have a cheftza shel issur without an oseir?

  4. BTW, your hesber for the Rosh is quoted by R"Y Engel in the piece in Esvan D'Oraysa that I referred to (end of siman 10).

  5. Tal Benschar6:09 PM

    I think the reason why the Minchas Chinuch is incorrent is more basic than that. IIRC, R. Elchanan says that the issur derabbanan is an issur of mered -- rebelling against the authority of the Rabbis. That is why one need not do any teshuvah for violating a derabbanan be shoggeg -- there was no mered. (In modern terms, we would say that the issur is not inherently wrong, it is just a matter of the authority of those who forbade it.)

    In a case of pikuach nefesh, even if we only say dechuyah in general, there is still no rebellion in violating the rabbanan. The rabbanan themselves would tell me to violate their own issur in a case of pikuach nefesh. No rebellion, no issur at all.

    So an issur derabbanan is always more kal than a deoraysa for this very reason.

    (Don't we always say that in pikuach nefesh? E.g., if one has to violate shabbos for pikuach nefesh, better to do so with a shinui and violate a derabbanan, which is more kal. The Minchas Chinuch would reverse that! Although arguably Shabbos is an issur kareis, and besides there is an aseh, so maybe it's not a good counter-example.)

  6. If you hold pikuach nefesh is hutra, then even an issur d'orasya is permitted and there are no issurim at all involved. The evaluation of what is ha'kal ha'kal takes place assuming the heter of pikuach nefesh is off the table.

  7. Tal Benschar11:28 AM

    1. You think that ha'kal ha'kal techillah applies even if one says huttrah. I believe that is one of the nakfa minas between hutra and dechuyah.

    2. In any case, the sevara I have given can be used even acc. to your understanding. Derabbanans are more kal because they are not inherently assur, they are merely an issur mered. That is why you do not need to do teshuva for violating a derabbanan be shoggeg. Likewise, that makes a derabbanan more kal than a lav, even if there are a lav and an asseh requiring one to keep derabbanans.