[Avodah] lifnei iver/kanaus

[Chana Luntz]

RAB writes:

> Lo yosif pen yosif is a lo taaseh even hitting alone without 
> any damage. What would then be, according to your analasis, 
> the heter to hit the student.

Well it is not my heter - after all the right to hit a student, at least
with a retzua katana, is enshrined in the Shulchan Aruch Yoreh Deah
siman 245 si'if 10.  And the Rambam in hilchos talmid torah perek 2
halacha 2 specifically says that one should hit the talmidim so as to
put fear upon them (albeit with a retzua katana and not with shotim).
You would thus have to say that the reference in Mishlei to sparing the
rod is an asmachta, as we do not learn halacha like this out from
ksuvim, but one does have to acknowledge its existence and the existence
of sources that specifically allow for the hitting of talmidim.  


In more general terms, the issue about the permitted use of physical
force in the face of issur within the halacha is clearly a complicated
one (as well as being one that is foreign to modern sensibilities) but
it does seem clear that prima facie, hitting somebody, as in giving
makos, is to be regarded as a mitzvah, with the issur specified in the
Torah being to be "yosif" - ie to hit *more* than is permitted (eg to
hit more than the 40 makos allowed for in the Torah), not that it is an
issur to hit at all.  And the sources I quoted above vis a vis the
talmid seem to work within this framework. There is unquestionably a
right to hit, but not too much (inter alia the piskei teshuva there in
Yoreh Deah brings a case of a rav having to pay nezikin for having hit
too much, but it is not disputed that he has the right to hit at all).



Even more generally, there are opinons out there that one might find
somewhat worrying to modern sensibilities, but I am not sure we should
pretend they do not exist.  For example the Rema states in Choshen
Mishpat Siman 421 si'if 13 "v'chen mi shehu tachas reshuto v'roeh bo
shehu oseh d'var averah rashai l'hachuso v'lyissuro cde l'hefrusho
m'isur v'ain tzarich l'hevio l'beis din (trumas hadeshen siman 18)"  He
also brings a linked statement in Even Haezer siman 154 si'if 3 as a
yesh omrim (and then brings an alternative opinion that it is absolutely
forbidden), but I am afraid he then goes on to say that the first
opinion is the ikar.

 
> Shelo yehei gufo choviv mimomono is a svara. The ptur is 
> based on the svara. Where the svara doesn't apply, the 
> heter/ptur falls apart. All the punishments in the Torah are 
> not svaras. They are gzerot hamakom.

If you assume that it is a svara, then you have two choices. Either you
say that the various heterim regarding hitting a talmid and more general
hitting in order to separate from averah are also gzerot hamakom (based
on pen yosif) in which case you cannot use the sevarah shelo yehe gufo
choviv mimamono, or you say that they too allow application of the
svarah, in which case you have certainly opened the floodgates even
wider than the Rema would have seemed to.  At the very least you appear
to be saying that according to the Rambam a rav may steal from a talmid
in order to create fear!

> > Or, for that matter - if we can push aside the issur of gezel for
>    >the mitzvah of chinuch of a talmid, why cannot we push 
> aside the issur
>    >of gezel so that the rav can take the talmid's lulav so 
> as to fulfil his
>    >mitzvah with it -both only involving the taking for a 
> very short time?
>    >Why is this different?
> 
> Because it remains the property of the talmid. I don't why 
> the rav couldn't use it on the second day.

You hold a lulav hagozel is mutar on the second day?  I don't think the
Mishna or the Shulchan Aruch (see Orech Chaim siman 649 si'if 1) agrees
with you (kol arba minim poslim b'gozel or b'gonav)!

And earlier RDB writes:
 
> That one must make quick calculations is evidenced by the 
> fact that if he can save the Nirdaf B;Echad MeiEivarav of the 
> Rodef, and he does not do so, killing him instead, he is a 
> Shofech Damim.

But the kind of calculations we are discussing are of a completely
different nature to the one you refer to here.  To demonstrate this most
easily, I would point out that secular legal systems (such as English
law) require the ordinary non Jew in the street to make an equivalent
quick calculation regarding the use of force.  Only "reasonable" force
can be used, and like the halacha, if one can save the nirdaf only by
injuring one if his limbs, one is not permitted to kill him.

However a calculation as to the relative weight of halachic issurim is
not something that a secular legal system could expect an average non
Jew in the street to do.  Nor could the halacha expect it of your
average Jew, because for that you need to be a talmid chacham.  In
situations where one has time, it is reasonable to expect a person to
consult a talmid chacham even if they are not one, but in a case such as
where one is attempting to save someone from a rodef, that kind of time
is not available and hence a person can not and should not be penalised
for not being able to make such calculations.  All a person needs to
know is that they need to act reasonably and proportionately.
 


> GCT
> 
> Akiva


 Regards

Chana