Setting Our Ground Rules

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by R. Gidon Rothstein

Petiha Kolelet, Part I, Par. 4-7: Setting Our Ground Rules

Checking Our Assumptions: How Durable is a Hazaka

We pick up with paragraph four of the Petiha Kolelet, where Peri Megadim points out a seeming incongruity in Rambam’s, Laws of Rebellious Ones 7;7. Before executing a ben sorer umoreh, a young teenage boy who has given reason to believe he is entrenched on the path to crime, Rambam requires checking the boy has not aged or matured out of the category (ben sorer umoreh is limited to the brief period after he reaches chronological adulthood, during his transition to full physical maturity). Lehem Mishneh, a commentator on Rambam printed on the page of the traditional version of the book, wondered why Rambam did not speak of such a check when the young man was given lashes at an earlier point in the process.

He suggested (but was unsatisfied with) hazaka as the solution. An established state or status continues until we know otherwise, so the boy’s hitting age thirteen gives him a hazaka to treat him as still in the time period where he could be a ben sorer umoreh. For the death penalty, we check only out of an abundance of caution to avoid putting anyone to death unnecessarily [and the Gemara assumes ben sorer umoreh never happened in practice].

Peri Megadim agrees hazaka gives courts the rights to assume a state of affairs is in effect, for all levels of punishment, including capital punishment. It doesn’t solve all our problems, because the Gemara assumes lashes create mortal danger as well (in Makkot 22a, the notes on my Petiha Kolelet tell me, where the Gemara discusses a person who dies because of the lashes; courts take pains to be sure the lashes do not kill the person, but it is a relevant possibility). We should then also check again before giving the boy lashes, out of the same abundance of caution.

Two other problems further weaken Lehem Mishneh’s idea. This is an hazaka ha’asuya lehishtanot, a state of affairs we know will necessarily change, because physical maturation is an ongoing process, weakening our ability to rely on what we once knew to be the circumstances. In addition, this hazaka is easily verified by a physical exam, and we usually think efshar levarer, it is possible to clarify, obligates us to do the test or check.

Peri Megadim leaves the issue unresolved, he says because it would take too long. He does offer one relevant source, Taz Orah Hayim 8;8, where Taz says only the worry about using Gd’s Name for an invalid blessing leads us to check tzitzit. To wear them, hezkat kashtrut would have been enough, their having once been shown to be valid and our not knowing a reason to suspect matters have changed. Avoiding improper recitations of Gd’s Name obligates Jews to check their tzitzit, where the prohibition against wearing garments without tzitzit does not.

[A little later, he notes Taz thinks there is an obligation to check a hazaka only where the hazaka began as a presumption, such as that a landlord had cleaned his house for Pesah before renting it, not an established situation. Magen Avraham disagrees, thinks we must verify any hazaka if we can do it without too much trouble.]

Rather than an answer, it’s an indication of how nuanced the topic is, the competing factors in deciding to rely on a prior hazaka. Both when we have once established a set of facts and/or where we have reason to assume or presume a certain set of facts, halacha is unclear as to how far we can go in accepting the inertia of halachic status.

Back to Hatzi Shiur

Now Peri Megadim comes back to hatzi shiur, violating a prohibition with less than the minimum amount for a full-fledged transgression, such as eating less than an olive’s worth of nonkosher food. R. Yohanan and Resh Lakish disagreed on whether the Torah forbade hatzi shiur, or Hazal did it, Yoma 73b. We accept R. Yohanan’s view, the Torah included hatzi shiur, at a lower level of severity.

The matter is less clear for non-food prohibitions. Rashi at the beginning of Shabbat assumes the problem with two people combining to carry an item from one kind of Shabbat area to another (a reshut hayahid, an enclosed space, to a reshut harabim, an open public-use space) is rabbinic, and Peri Megadim assumes it is an example of hatzi shiur (the notes points out Rashi to Shabbat 74a takes for granted that baking less than olive’s worth of bread is a version of hatzi shiur and therefore prohibited BiblicallyPeri Megadim seems to me to be extending it to where two people share the action, which I could have imagined treating as a separate issue of shenayim she’asa’uha, two who performed act).

He points us to Shu”t Hacham Tzvi 86, who limited R. Yohanan’s rule to food prohibitions, or possibly also wherever a person’s actions showed s/he gave the hatzi shiur significance. With the prohibition against owning hametz on Pesahwhere the prohibition involves leaving offending material where it is, hatzi shiur would not be a Biblical concern, he says.

Beyond the technicalities, the idea of hatzi shiur tells us items are prohibited even where the transgression would be unpunishable, and Peri Megadim points out we do not know whether that is true for sins other than food. For those prohibitions, is it any version of the act that is a problem, or only when it rises to a certain level? Not clear, Hacham Tzvi was pointing out.

Protecting What Parts of the System

Peri Megadim next wonders whether Hazal made protective ordinances to ensure an aseh, an obligation, would be properly observed, or only for prohibitions. [The issue reminds us of the crucial halachic distinction between action and inaction. Prohibitions usually involve wrongful acts, where failing to fulfill an obligation consists of a lack of action. Perhaps Hazal saw their job only as preventing breaches in action, not the (lesser) second kind of wrong. This also taps into the question of the respective roles of asehs and lo ta’asehs in the service of Gd.]

The verse often cited as what taught us Hazal had the ability to make such ordinances, Vayikra 18;30, tells the Jewish people ushmartem et mishmarti, understood by tradition to mean “guard My mishmeret, the rules of conduct I have given you.” Peri Megadim says guarding fits more simply with rules against certain actions. Ensuring observance is also important, but is not as clearly part of a mishmeret.

What Pushes Aside What

Where there we seem to prioritize safeguarding against active transgressions, paragraph seven of this Petiha points out places where asehs take precedence. The Gemara has a clear principle, aseh doheh lo taaseh, an obligation pushes aside a prohibition [a classic example is sadin betzitzit, a linen garment can have woolen tzitzit, assuming the tzitzit have techelet and therefore completely fulfill the Biblical obligation. Wool and linen woven together usually violates the prohibition against shaatnez, but here the obligation of tzitzit “pushes” it aside]. The principle on its own surprises us, because, as we have just said, courts punish breaches of lo taasehs, where there is no punishment for failing to fulfill an aseh, yet the system allows the aseh to be a reason to ignore a lo taaseh.

Peri Megadim is more interested in ramifications than reasons. If an aseh can push aside a more serious aspect of the system, he proposes the aseh would also push aside prohibitions for which there are no lashes. [I would have thought this would be obvious, because I would have thought these prohibitions are less serious than ones with lashes; the more obvious extension would have been to a prohibition with a karet punishment, a question the Gemara considered, and left unclear. Peri Megadim assumes it does not have the power to do that, in his introduction to Laws of Shabbat.]

Turns out not to be a valid assumption. He notes Mishneh LeMelech to Laws of the Foundations of the Torah 5;8 quotes Rashba, and Semag makes a similar point in Prohibition 40, the mitzvot for which there can be no lashes are left that way to show the sinner has no certain path to atonement. The Torah withheld such atonement for these other sins because they are worse.

[This makes intuitive sense for categories like a lav shenitan le’azharat mitat beit din, a prohibition with the main purpose of setting the stage for a capital punishment, or even a lav shebichlalut, a prohibition that incorporates many others. There, we can imagine the Torah does not want the sinner to think “just” lashes can solve the problem. Even that contention has the weakness that karet prohibitions can be resolved with lashes.

More, some prohibitions without lashes seems less significant, such as a lav she’ein bo maaseh, a prohibition with no action. In addition, Ramban to Shemot 20;8 claims an aseh overrides a lo taaseh specifically because the aseh is more significant, expresses the Jew’s love for Gd, where obeying the prohibition only actualizes the Jew’s fear or awe of Gd. In that view, we have no reason to believe an aseh can push aside a more serious prohibition than the ones the Torah said.]

It gets at the crux of the kinds of issues Peri Megadim reminds us to consider: knowing what counts as “more” than what is illegitimate in many contexts—we cannot choose to fulfill what we find to be more important in halacha— but vital in others. To understand the Torah fully, we need to put each element in its proper place, to then know how to resolve tensions that arise, especially in applying broadly but ambiguously stated principles like aseh doheh lo taaseh.

More next time; comments always welcome at my gmail, first letter of my first name, first seven letters of my last.

About Gidon Rothstein

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