by R. Gidon Rothstein
Hazakah in Its Various Sorts
In the fourth part of the Introduction, Peri Megadim had brought up the idea of a hazakah me-ruba, where halachah allows us to assume a certain state of affairs because that’s how it usually is, in the majority of cases. His example was how a court will assume that a woman who raises a child as her own is her biological son (such as if the grown child hits her, a capital crime for a biological child, a lesser one for a non-child, in one of his examples).
Here, he notes a disagreement about how rov, majority, works. Ri the Tosafist held that rov, majority, tells us what is going on, where Rashba thought it only helped form an enforceable assumed state of affairs. [If a piece of non-kosher meat—dry, so there’s no taste interaction between them– mixes with a majority of kosher ones, when halachah allows eating the pieces, do we think the Jew who cooks and eats one of them is in fact eating a kosher piece, since any piece s/he took obviously came from the majority, or is the Jew allowed to eat it by halachah, despite some chance it is actually non-kosher?]
The distinction affects our view of a father’s status [where there is less proof than with mothers, and studies today point to more false paternity than I would have thought]. The Gemara asserts the majority of a woman’s sexual encounters are with her husband; for Ri, that tells us the husband is the father of her children until we know otherwise, so if one of their children strikes him, s/he will have committed a death penalty sin. Hazakah operates differently, and becomes a separate halachic concept.
For Rashba, all hazakot that make assumptions about how life works depend on rov, and therefore transfer to other hazakah situations (like whether we can similarly assume a man’s children are brother and sister), or if we have contradictory evidence about whether a woman had been divorced, with the hazakah, the currently assumed state of affairs, that she is married.
Radvaz in a responsum also assumed we accept hazakot as the basis for court action, such as where a man and woman live together as husband and wife. Their actions lead us to assume they are married, have consummated the relationship, to actually be husband and wife for all purposes.
The Types of Hazakah
The discussion leads Peri Megadim to list the versions of hazakah, and some of their halachic impact. 1)There is the idea three instances obligate us to expect the same event in the future [an opinion in the Mishnah thought two occurrences enough; his example would take us too far afield, but we establish many patterns in halachah based on three instances].
2) Hazakah me-ikara, we assume situations continue, such as when a kohen decides a spot on a wall in a house is large enough to require closing the house for a week, to check whether the area spreads and reveals itself to be tzara’at; between the time he saw it and closed the house, the mark might have shrunk below the minimum size for worry, but hazakah tells us to assume it did not. Or the case of the married woman we noted above, that until we know she has been widowed or divorced, we continue to assume she is married.
3) When we know a situation has changed, a hazakah de-hashta, of now, tells us to assume it changed all the way back to the last time we are certain of the old status. [R. Eisenberger gives the example of a young woman who reaches adulthood, but we are not sure when.]
4)Thirty days establishes some situations [he does not give an example, I think because the next hazakah in the list, a man and woman living together, is established by their having lived together for thirty days; R. Eisenberger struggles to resolve the two, and I am not going to try to untie this knot.]
5) The fact of a man and woman living together creates the presumption they have consummated their relationship, and thus become man and wife (those who witness only the fact they were alone in their living quarters count halachically as having seen them have marital relations).
6) Presumptions about how the world works, such as that witnesses only sign legal documents if they know they have been executed by adults, borrowers do not pay back early (so if one claimed to have, with no proof, we would believe the lender who said s/he had not been repaid). Included in this is the idea of hazakah me-ruba we saw above.
In letter 16 [I have skipped a few paragraphs where he makes inconclusive points about other topics], he notes Rabbenu Simhah suggested the hazakah about how life works is valid evidence for capital cases, where a hazakah we know can and does change is not, such as a woman’s being single or married.
7) Immediate hazakah, such as where a woman wears the kinds of clothes that indicate she is a niddah, or a butcher makes the kind of mark on an animal that says it is kosher (or not).
He has more to say on this, but it turns into a continuing and unresolved consideration of which uncontradicted assumptions play what role in the evidence of court cases. Without resolution, the conversation can safely be tabled for some other time.
Majority and Double Doubt
Rov affects our view of another issue, sfek sfeka, a double doubt, where halachah often allows treating such a doubt as too insignificant to factor into our thinking.
Not for Rambam, because he held the requirement to rule stringently on doubts about Biblical issues is itself a rabbinic idea. Once there are two doubts, we are supposed to rule stringently on the first one only as a rabbinic matter, and then the second doubt is a doubt about a rabbinic question. For him, Peri Megadim is saying, the idea of sfek sfeka is not novel, it is that the second doubt is no longer a matter of a Biblical law, and so we can rule leniently.
[Sfek sfeka is a powerful halachic tool; when poskim today look for ways to be lenient, putting together two doubts, neither sufficient on its own, is a common strategy.]
Rashba—who agreed with most authorities that sfeka de-oraita le-humra, ruling stringently in cases of Biblical doubt, is more than rabbinic—says a sfek sfeka is stronger than a rov, a majority. Although at face value odd, because what stands against a double doubt is still a majority, Rashba says the two doubts knock down the strength of the majority [perhaps because each faces a majority, and the idea of rov works for one majority rather than two, suggests R. Eisenberger]. Unfortunately, the idea of sfeka de-oraita le-humra seems to be an halachah le-Moshe mi-Sinai, a rule passed down completely orally, and therefore, according to Rashi, not amenable to logical inference.
After some back and forth (R. Eliezer, who allows violating Shabbat even for the preparatory elements of a circumcision, apparently does reason from an halachah le-Moshe mi-Sinai, according to Avodat Ha-Gershuni), he ends up assuming a sfek sfeka for these views must be the same as rov, because we cannot reason with a kal va-homer on an halachah le-Moshe mi-Sinai issue.
A Few Last Points
As last time, we have a couple of short paragraphs, each with its own point. Peri Megadim cites for later comment an idea of Hacham Tzvi about mesaye’a, where a Jew helps another Jew sin. For Shabbat purposes, if two people join to perform one of the melachot—they carry together an item either one of them could have carried—neither has violated the prohibition of helping the other, since that person could have done it him/herself.
From it being a special situation for Shabbat (derived from a verse), Hacham Tzvi inferred it would be a problem for any other prohibition. Regardless of my friend’s ability to find and eat pork on his/her own, I am not allowed to help. Where one party could not have done the act him/herself, and the other could, the one who could not does not even count as mesaye’a, helping (if the other person could lift an item as an act of worship to a power other than Gd, and asks for help from someone who is too weak to do it him/herself, the help is halachically insignificant, Hacham Tzvi was saying).
The Gemara thought courts coerce Jews to perform mitzvot [an unquestioned idea in the Gemara clearly out of line with contemporary Western sensibilities, one of those ideas I think we must think about again and again, because it shows a point of tension between our attachment to Torah and our attachment to other worldviews]. The Gemara itself made an exception of mitzvot where the Torah itself laid out a reward [courts do not coerce Jews to honor their parents, for example].
Taz Yoreh De’ah 240;1 thought the Gemara only ruled out coercion until death [which courts have the full right to do in other cases]; they could and would apply lesser levels of pressure, he said, including—Peri Megadim suggests he meant– limited rabbinic lashes, up to thirteen of them.
A passage in Yevamot 6b argues the Torah had to single out lighting fire on Shabbat to tell us courts are not allowed to execute criminals by means of serefah on Shabbat, pouring molten lead down the sinner’s throat. To answer how it could have been a possibility, when killing itself is not allowed even to fulfill a mitzvah (because Sabbath violation is a karet prohibition, so the obligation to put a sinner to death would not push it aside), Rashba said the court could have a non-Jew do it. For Rashba, a non-Jew pouring the lead can count as enough of the messenger for it to be as if the court did it but not, apparently, enough for the death of the person to redound back to them.)
Rambam assumes the idea extends to all punishments. Peri Megadim points us to his comment on Orah Hayyim 339, it is because Rambam held even court-given lashes violate Shabbat. They are a melachah she-einah tzerichah le-gufah, an action done not for its central Shabbat-violating purpose, which he held was still a full form of the act.
Once we know non-Jews sometimes can act on behalf of Jews, although they do not count as messengers, Mishneh le-Melech suggests we might also have a non-Jew stop a rodef where we cannot, such as if the rodef is racing to commit a sexual perversion on Shabbat. [Were the rodef planning on killing someone, it would be pikuah nefesh, and we could stop him ourselves.]
His last idea for this time, which he says he has discussed more fully in the body of his comments on Magen Avraham and Taz in Orah Hayyim 344, starts from the idea an aseh, an obligation, cannot push aside a lo ta’aseh that has a karet punishment [a plain obligation will generally not allow eating leaven on Pesah, for example, an idea we just saw regarding court executions.] Where the karet is only a safek, we are not sure we are in a karet situation, Peri Megadim thinks it will be allowed.
For this time, we spent our time on how we figure out situations through presumptions and majorities, with a little bit on how and when non-Jews might be able to help us achieve what we want when we cannot. Next time, we will complete our study and summary of the Petihah Kollelet, and from there, our next project, figuring out what the Torah itself required or prohibited.