[Avodah] lifnei iver/kanaus

[Chana Luntz]

RAB writes:
> 
> Once you agree that either of these scenarios are acceptable, 
> if not for the technicalities of where one is less of a 
> certainty than the other, and we have the principle shelo 
> yehei momono choviv migufo, than we must ask why a teacher 
> cannot confiscate a pupil's property based on this principle, 
> if he can indeed hit him.

This is why, when RDB first raised the question of rodef, I assumed that
this was where he was going, precisely because of this explicit
statement in the Shulchan Aruch.  That is why I couldn't understand why
he was trying to raise a case of rodef from some far fetched scenario,
when there was a realistic one paskened right there in Shulchan Aruch,
with some helpful meforshim raising the link between chavla and gezel
right there (albeit the other way around).  But he rejected that example
as helping him.  I still think it helps him as much as some other
unrealistic scenario, and that the same issues get raised.  

But once you analyse the case brought in the Shulchan Aruch (and this
goes for any case involving rodef), it seems to me that there is a
striking difference between a rodef case and the teacher case.  In the
rodef case one is dealing with pikuach nefesh.  And we know as a general
principle that all issurim except those that are yarog v'al yavo are
doche in a pikuach nefesh case.  It is thus obvious that any issur of
gezela (if such a scenario could be constructed) as well a chavla would
be doche to save an innocent life, unless of course you hold the
position (which, as RDB has indicated, has been widely rejected by the
majority of the rishonim and achronim) that gezela is yarog v'al yavor.
It thus would seem that the fundamental mindset one needs to have is to
assess what best will prevent the taking of an innocent life, rather
than do a mindset that requires weighing of the nature of one issur
versus another.  It is not a genuine case of a kal v'chomer from one
issur to the next, it is a case of all issurim being doche to pikuach
nefesh.

In the teacher case, we are not generally considered to be dealing with
pikuach nefesh.  It is just that it is possible that in the course of
hitting a talmid, the teacher might come to kill him.  One has to
consider such a possibility reasonably remote - and that this is
precisely why the teacher is indeed patur from going into galus.  It is
not just that he is doing something mutar (although he may well have
ended up violating pen yosif), but that the consequences (ie death) are
not reasonably forseeable or particularly expected, and, of course,
completely unintended.  However, taking away the talmid's property would
seem, as per the definition of gezela, to be straight out stealing.  And
the teacher by doing so would seem to be intending to do the issur of
stealing (in a way that he never intended to kill).  So you need to ask
the question, one what basis can one override the issur of gezel?  This
is standard halachic analysis - gezela is a lo ta'aseh, what overrules a
lo ta'aseh?  Pikuach nefesh is clearly one such case.  Arguably a
mitzvas aseh might do so - but the mitzvah of chinnuch is derabanan, so
it is hard to see how you can override a lo ta'aseh on the basis of a
d'rabbanan.  

 Perhaps we can differentiate 
> between where the rodeif is a killer, thus since he has 
> forfeited his life, his property is undoubtedly worth less, 
> and our case where the pupil has forfeited his right to a 
> beating. Perhaps his property is more valuable to him. For a 
> proof, see pesachim 25a: Rebbi Eliezer says why does the 
> Torah say.. uvchol meodecha.. if there is someone whose money 
> is more precious to him than his body..

But the point that Rav Henkin makes is that we have here an issur lo
ta'aseh of stealing.  Just because you are specifically permitted to hit
in this context, does not mean that you are permitted to steal -
regardless of what the person might regard as more valuable, his
property or his body [as an aside if you apply this reference in
pesachim 25a in the way you appear to want to, then should you not also
say that all of the punishments of the Torah that relate to the body
should perhaps be switched in the case of somebody who values his money
more than his body, and similarly perhaps all of the fines in the Torah
should be switched in relation to somebody who values his body more than
his money?].  

And I confess that the fundamental point that Rav Henkin appears to be
making seems very valid to me - if we do not have a source specifically
allowing for a kal v'chomer, on what basis can we intuit it?  Because
gezel seems light in our eyes (that is what we are really saying by
means of the kal v'chomer, isn't it)?  We do not, as a general rule,
assume that because something is permitted in a particular context where
it is otherwise forbidden (eg doing a bris on the eighth day even though
it is shabbas), everything else is therefore permitted.  If you were to
run a kal v'chomer in this context would you not say - since we can push
aside shabbas (an issur punishable by misas beis din) to do a bris,
surely we can push aside the issur of gezela and steal in order to do a
bris?  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?

> KvCT
> 
> Akiva

Gmar Tov

Chana