[Avodah] violating a lav to perform a mitzva

[Chana Luntz]

RJF writes:

> Rt. Chana Luntz wrote:
> > I find myself constantly finding examples where I end up 
> saying  - but  isn't this another case where there seems to be an 
> assumption that if we  are doche a Torah mizvah, a rabbinic mizvah
kama v'kama, 
> but anyway -  you are more than welcome to join me on my hunt.
> 
> The Qal Vahomer is not valid because Hakhamim Asu Hizuq Lidivreihem 
> Yoser Mishel Torah. It is therefore possible to apply dehiya for a 
> D'Oraisa, but not for a D'Rabbanan.
> 

Yes, this is what Rav Moshe said.  All I am saying is that I keep
falling over examples where it seems to me the rishonim did not take
this approach, and appear to be applying a kal v'chomer (I should
probably say a quasi kal v'chomer, it is not a kal v'chomer in the
strict sense).  The latest one is in the Taz on that Even HaEzer 4:20 to
which RSM referred me.  The Taz brings the problem that was bothering me
about how can you allow a mamzer to have relations with a shifcha,
aren't you over on a d'orisa in doing so? - and brings Rabbanu Tam that
in fact there is no violation of the d'orisa when davka a mamzer has
relations with a shifcha, because the problem in fact is "lo yiyeh
kadesh" and due to the nature of a mamzer he is anyway a kadesh, because
his whole being was created by way of averah, therefore there is no
violation if he is then boel a shifcha.  But he then goes on to say that
there is a still a d'rabbanan violation if a mamzer is boel a shifcha
according to Rabbanu Tam, just not a d'orisa - and hence only because of
being metaken the vlad is it  mutar - ie a l'chatchila.  

In other words, we are worried that there is a problem being over a lav
of the Torah - but once we work out that actually there is no violation
of the lav of the Torah, the fact that there is a rabbinic issur is not
a problem when we have a valid reason, such as being metaken the vlad.
No discussion about hachachim asu hizuk lidivreihem - and why it should
or should not apply in this case, just a straight plunge in to say it is
mutar where there is some sort of justifiable ztorech.

And I keep finding examples like this - where there is potentially a
violation of a Torah lav or mitzvah, and the posek or rishon or whoever
is discussing it works out how you can say that really there is no
problem on a d'orisa level, only on a d'rabbanan level - and then
appears to breathe a sigh of relief and says whatever it is is mutar
because of the tzorech in question.  Surely if Rav Moshe were right and
Hachamim asru hizuk lidivreihem was a general principle to be applied
wherever a rabbanan comes up (and not just to certain specific
derabbanans where this is specifically stated), then every time you have
one of these discussions, the next step after eliminating the d'orisa
problem, and before declaring it mutar, would be to say why this
principle did not apply in the case in question.

But that is why I called it a hunt.  It is not a kal v'chomer in the
technical sense (nor if you read my words carefully, did I discribe it
as such).  It is more a case that there seems to be an application of a
certain process that does not take into account the logic that you are
articulating, and therefore would seem by inference that such logic is
being disregarded.

> --Jacob Farkas

Regards

Chana