[Avodah] no smokers for my daughter

[kennethgmiller at juno.com]

R' Zev Sero wrote:
> The burden of proof is on those who would forbid something, not
> on those who would see it remain permitted.

I accept the logic of this statement, but I question whether or not it can be applied to the current discussion.

RZS's logic (IIUC) is that if something is firmly in a certain category, strong forces must be brought to move it to another category. Examples of this would include taking objects which are not muktze and making it assur to handle them, or taking certain vegetable which may be eaten on Pesach and instituting a minhag to avoid eating them.

But if one's question is whether this object falls in the category of muktze, or whether this food falls in the category of kitniyos, then this concept of "chazakah" does not apply. One cannot say that "soybean oil has a 3300-year chazaka of being allowed on Pesach and the burden of proof is on those who would say that it is kitniyos," because no one is suggesting that its status is to be changed. Rather, its status is being *determined* - What has its status been all along? Was it included in the minhag or not?

In our case, I don't think anyone is suggesting that the status of smoking is being, or ought to be, changed. No one is saying that a hundred years ago, smoking WAS mutar, and that we (which sanhedrin?) are trying to forbid it. Rather, everyone agrees that there are halachos against doing dangerous and unhealthy things, and there are various views about whether or not smoking is covered by those halachos.

Some say that the dangers of smoking are real, but are not sufficiently severe or immediate to be included in these halachos. Others say that smoking *is* dangerous enough to be forbidden, and always has been forbidden, except that this information was not known until recent decades. Various sorts of logic can be used for either of these views. I have heard Rav Moshe Feinstein brought for *both* of them: His published teshuvos (as I understand them) say that HaShem would not have allowed so many tzadikim to be nichshol in this if it were assur, and that this is evidence that it is mutar even today. Others claim that if RMF had been aware of recent research, he would have admitted that smoking was assur allong, even for those unfortunate tzadikim.

In conclusion, in contrast to what RZS wrote, I do not think that either group has a burden of proof the change the status of smoking, but that both are trying to determine what its status has been all along. As it has been phrased in other threads: Is everything allowed except that which is expressly forbidden? Or is everything forbidden except that which is expressly allowed?

Akiva Miller

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