Lesser Violations: Fewer People or Fewer Prohibitions?

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by R. Gidon Rothstein

2 Iyyar: R. Herzog on Lesser Violations: Fewer People or Fewer Prohibitions?

In the early State of Israel, the security situation was tenuous and worrisome for years. On the second of Iyyar, 5712 (1952), R. Isaac HaLevy Herzog (Ashkenazic Chief Rabbi at the time) answered a question from kibbutz Tirat Tzvi about how to minimize their Shabbat violations while guarding the kibbutz.

Heichal Yitzchak Orach Chaim 27 discusses whether they’re better advised to send fewer guards on horse or more on foot.

Riding Vs. Walking for an Individual

The question takes for granted that riders violate Shabbat more than walkers (since fewer people violating Shabbat is obviously better). R. Herzog is not as sure. He lists some of the obvious problems with riding on Shabbat; the riding itself is prohibited Rabbinically, and urging an animal to go when it’s carrying a load is a Biblical violation called mechamer. Making the animal work also fails to obey the Torah’s command to let it rest.

On the other hand, a rider seems to avoid the prohibition of hotza’ah, taking items out from reshut hayachid to reshut harabim, from enclosed spaces to ones open to and used by the public, or for transporting items over more than four amot of such a public space, since those items are resting on the animal, not being carried by the person.

Hotza’ah is one of the full Biblical violations of Shabbat, one of the 39 categories of activity that incur karet or, if performed in the specific way punishable by a court, stoning.  Were Tirat Tzvi to have a reshut harabim de-oraita, a space Torah law considered public (according to many authorities, such a space must hold or traffic 600,000 Jews regularly, which means there are few Biblically defined public spaces), we would clearly prefer mounted guards, since mechamer is “only” an obligation that leads to a prohibition (known as an issur ‘aseh) or, at most, a plain prohibition, without lashes as a possible punishment.

Better to do that than to violate a rule punishable by death or karet.

Many Lesser Sins or One Worse One?

R. Herzog says that’s true even according to the view of Ran inYoma, that it’s better to commit one bigger sin (in that case, slaughter an animal for someone who needs to eat on Yom Kippur, for medical reasons) than many lesser ones (eat several bites of non-kosher meat). He points out that Ran was dealing with a situation where both prohibitions were Biblical.

Here, there may be a Biblical problem of mechamer, with the addition of a Rabbinic issue of riding an animal on Shabbat, but those are not nearly as bad as the stoning-liable violation of carrying. Also, Rambam held that what might seem an additional problem of failing to let one’s animal rest in fact is the same as mechamer, so for his view, it’s only one Biblical prohibiton.

Others, such as Ramban and Maggid Mishneh, saw these as separate prohibitions. Still, neither is as serious as carrying and we would therefore choose to let necessity lead us to violate those (although that seems to have been exactly what Ran was addressing, one more serious violation as opposed to many fewer; R. Herzog does not explain further, but I think he means that a stoning-possible violation is so much more serious that it is obviously to be avoided. There’s more to discuss, but it’s not in the responsum, so we’ll leave it for now). He expresses some hesitance, but it’s the way he leans.

In addition, there’s a way to alleviate some of the violations, by borrowing someone else’s animal. The Torah spoke of letting your animal rest; taking someone else’s is still mechamer, but it’s not making your animal work (and Eglei Tal noted that some hold that even mechamer only applies to one’s own animals). (This reminds us of how vital legal technicalities are to halachic discussions. We might assume the Torah was telling us to let animals rest; now we find some authorities who saw it as about the owner’s Shabbat relationship to his animals.)

If that works, it completely removes the Biblical prohibition, and is obviously the better choice.

However, Tirat Tzvi in fact does not have a reshut harabim at a Torah level, so that walking guards, even carrying weapons, are violating only one Rabbinic prohibition. Riders violate several different ones, some of which may be Biblical (Rashba held mechamer is a problem even in a courtyard, which is clearly a reshut hayachid, an enclosed personal space. True, others disagree, such as Ran, but we still have a possible Biblical violation).

Eruvin and the Definition of Public Spaces in Our Time

Some rishonim held that we do have Biblically defined public spaces today, so for them we’d be back at having to weigh a Biblical stoning-level Shabbat violation against ordinary prohibitions or lower. That leaves us with a doubt, since it’s not clear which view is more correct or accepted.

Magen Avraham 266;7 left unresolved how to weigh a definite prohibition against a doubt as to whether one might be violating a more serious one. In his case, the issue was riding or walking more than twelve mil on Shabbat. Walking that far (between seven and nine miles, depending on the distance of a mil) definitely violates the Torah’s rule of staying within techum Shabbat (we more commonly speak of one mil, 2000 amah, as the boundary, but that’s a Rabbinic rule).

Riding that distance violates the Rabbinic prohibition of riding an animal, but it might also constitute a techum Shabbat issue. It’s only “might” because Magen Avraham entertains the possibility that the distance boundary did not apply above ten tefachim (that’s as far as a public space extends, halachically. This is a complicated concept which we do not have the space to elaborate; the relevant point for us is that there is an halachic doubt as to whether riding on a horse for twelve mil constitutes a Biblical violation oftechum Shabbat).

R. Herzog thinks Magen Avraham might have agreed about our case, however, where one of the doubts is a stoning-level concern while the other, even with a Rabbinic prohibition added, is “only” a lashes-level prohibition. It’s also not really a doubt as to whether we have Biblically defined public spaces today, since all eruvin rely on the assumption that there are no such spaces (for reasons we need not get into here; prime among them is the assumption that unless a road has daily traffic of 600,000 people, it cannot be a reshut harabbim).

In Favor of Using Fewer Guards

In a karmelit—a space halachically somewhat like a reshut hayachid and a reshut harabbim but not exactly like either—the consensus seems to be that making an animal move while carrying a burden is a Rabbinic rather than Biblical problem.

That would mean that if someone mounted the horse in a private space, he’d violate the Rabbinic prohibitions of riding and making an animal carry, whereas the pedestrian guards would only be committing one Rabbinic prohibition, carrying. Except that Magen Avraham held that mechamer did not apply in a karmelit at all; since other acharonim held there’s no shevitat behemto, no requirement to have one’s animal desist from work, in a karmelit, the advantage of having fewer people putting aside these Shabbat issues seems clear.

R. Herzog adds a thought of his own that would push in favor of this plan, which he later saw inPenei Yehoshua(Torah scholars will often tell us they had an idea and then note they later found it in a previous book. That earlier work validates their idea, but they clearly also want us to be clear that they had the idea themselves. It’s an example of where what we might think of as pride seems permitted, that we are allowed to stand up and declare we had idea.).

Maybe this isn’t a problem of shevitat behemto at all, because the only Shabbat-problematic activity we are having the animal do ishotza’ah, which is considered a melachah geru’ah, a lower level of Shabbat activity (Tosafot uses that term to explain why the Gemara offered a verse to prove this was a problem on Shabbat, when almost all the other forms of melachah are a matter of tradition; explaining what makes it a melachah geru’ah would take us too far afield).

On the Other Hand

That’s not the whole story, however, since Rema categorized riding and using an animal as separate violations. Riding was prohibited for fear the rider would tear branches off a tree (as a sort of whip), whereas sitting on the animal was prohibited later, as a way to make sure we did not use animals.

That tips the scales the other way, since carrying in a Rabbinically prohibited manner has only one problem, while riding horses has two. If the roads aren’t sixteen amot wide (24 feet), then it’s even more clear that we don’t have Biblical hotzaah, pushing us further towards avoiding riding animals.

Many Vs. One

The discussion so far weighed prohibitons, without regard to how many people would be acting this way. When we turn to that problem, R. Herzog cites Menachot 63, where the Mishnah shares the report of R. Chanina Segan HaKohanim that on a weekday, the barley for the Omer (which was cut on the night of the second day of Pesach, Shabbat or not) was cut with three people involved, but on Shabbat only one person was used.

Seemingly, the one person commits more prohibitions himself than if he were one of three, leading R. Herzog to understand thathalachah prefers fewer people to fewer prohibitions (the logic doesn’t seem ironclad to me, since he hasn’t demonstrated that the one person commits more prohibitions than the three—that one person cuts the amount of barley the three would, so it seems like the same number of prohibitions).

Ending Inconclusively

For all that he seems to have pointed in favor of using fewer guards, he raises one last issue that might throw us back into uncertainty. A person who carries violates the transgression every time he picks an item up in a private space and sets it down in a public space (or vice-verse) as well as for each four amot in the public thorgoughfare. For riding an animal, the division point between prohbitions isn’t so clear; it seems unlikely that a person who rode a horse for five minutes would have violated Shabbat to the same extent as one who rode that horse all day, but R. Herzog doesn’t know of a clear halachic delineation.

There are thus ideas on both sides, and R. Herzog leaves it there. My impression, though, is that he fundamentally thought it a better idea to send out mounted guards, since they need to abrogate Shabbat less to perform their duties than the guards on foot.

Even when halachah must be breached, as in the case of pushing aside Shabbat to protect lives, we need real answers as to how to breach it least. That was what R. Herzog helped these farmers figure out on the second of Iyyar 5712 (1952).

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