[Avodah] shabbas//mishum eiva, etc???

[Micha Berger]

On Tue, Aug 09, 2011 at 05:38:07PM -0400, Zev Sero wrote:
> On 9/08/2011 5:34 PM, Micha Berger wrote:
>> On Tue, Aug 09, 2011 at 05:28:50PM -0400, Zev Sero wrote:
>>>> See AZ 26a, R' Yosef says that a bas Yisrael may midwife for a nachris
>>>> besekhar -- mishum eivah.

>>> That's during the week, not on Shabbos!

>> That's his first statement, then the gemara adds:
>>      Savar R' Yosef lemeimar aveladei aku"m beShabesa bisekhar shari
>>      mishum eiva.

> Savar, but he didn't conclude that way, because there's no need.

If you were more clearly claiming that you feel that Shabbos is huterah
or dechuyah mishum eivah dates back to Chazal in principle, but the
metzi'us only made this pesaq lemaaseh in more recent times, I doubt I
would have been as surprised.


On Wed, Aug 10, 2011 at 11:56:40AM +0100, Chana Luntz wrote:
: a) a discussion of the differences between d'orisa asehs (positive
: commandments) and lo ta'asehs (negative commandments).  The former is much
: easier to "enact or go around" than the latter on the basis that telling
: somebody to shev v'al ta'aseh (sit and not do something) is very different
: to telling them to act to violate a prohibition.  An example of an enactment
: vis a vis d'orisa aseh is the rabbinical prohibition on blowing shofer on
: shabbas

According to R' Yonasan Sacks (of YU and the Agudah of Passaic-Clifton),
this power is limited to gezeiros protecting more chamur mitzvos. Not all
rabbinic legislation are gezeiros -- gezeiros here means specifically
avoiding violation due to habit or accident

: b) once you are in the realm of aseh's the gemora in Brachos 19b- 20a seems
: to suggest that the principle of kovod habrios allows you to shev v'al
: ta'aseh even for a aseh d'orisa.

I think this is a case of deOraisa vs deOraisa. Showing another person
kavod isn't derabbanan. Even if it was left to Chazal to spell out how
to balance the two dinim in specific cases.

I discuss this further in
http://www.aishdas.org/asp/2006/02/types-of-halachic-rulings.shtml
Quoting the relevent piece:
    The distinction between the second and third categories (dinim
    derabban and gezeiros, respectively) is subtle. In order to be a din
    (or issur, or melakhah) deRabanan, the prohibited action is one that
    is similar in purpose to the permitted one.

    In contrast, a gezeira does not even require an action. In the
    example I gave, it was inaction, leaving the pot where it is, that
    is prohibited. Second, the category includes things that are similar
    in means to the prohibited act, and will therefore cause confusion
    about what is and what isn't okay; and things which will allow people
    to be caught up in habit, and forget about the prohibition. Only a
    gezeira may defy an actual Divine law (although a pesaq will often
    define one), and even so only under specific circumstances. All of
    the following must be satisfied:

    - The law being protected is more stringent than the one being
      violated. This determination isn't easy.
    - The law is being violated only through inaction. No one is being
      told to actively violate G-d's commandment.
    - According to the Ta"z, the law being violated will still be
      applicable in most situations. It still must exist in some
      form. (Not every acharon agrees with this requirement.)

    In another way, a gezeira is less powerful than a normal rabbinic
    law in that it cannot be compounded. One may not make a "fence"
    for the express purpose of protecting another "fence".

: c) even where you are talking about lo ta'asehs, "going around" is often not
: considered a problem.  Of course the most famous case of going around is
: prozbul, ie a going around of the requirement to cancel personal loans in
: shmitta, but similarly sale of chametz (which is clearly preventing the
: violation of a negative prohibition) is another.

Pruzbul circumvents shemittah derabbanan.


: If you are talking about shabbas specifically, then I would agree with RZS
: here that the real underlying principle is pikuach nefesh.  We push aside
: even d'orisas where there is even a remote safek of pikuach nefesh, and it
: is the characterisation of the result of the aiveh leading to pikuach nefesh
: risks that allows for d'orisa shabbas violations where there is no
: alternative.

This requires believing that mishum eivah means very different things
in different contexts. I doubt mishum eivah between spouses, from parent
to child, or between two Jews is about an expectation that things would
get homocidal. And doing business beyom eideihem mishum eivah -- is that
really about piquach nefesh?

If mishum eivah is a buzzword representing single halachic concept,
I would say (and have, in our previous iterations) that there is simply
an issur against creating hatred in the world. Yes, it takes more eivah
to override Shabbos than stam a derabbanan, but that's at least making
the issue one of degree rather than splitting mishum eivah by kind.

Tir'u baTov!
-Micha

-- 
Micha Berger             You are where your thoughts are.
micha at aishdas.org                - Ramban, Igeres Hakodesh, Ch. 5
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