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

[Chana Luntz]

> 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

Not sure what this adds.  Clearly the rabbis are not likely to just stam
tell people to shev v'al ta'aseh for no reason at all.  So clearly if they
enact this they are going to be protecting something.  But I am not sure it
is as simple as this.  For example, since we are getting in to Shmitta
below, how about the statement that when the rabbis instituted Shmitta
rabbinically, that causes a shev v'al ta'aseh situation regarding the
collecting of d'orisa loans (Gitten 36b).  How does that fit within the
definition of gezeros as defined here?

> : 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.

What is the halachic basis ie source text for kovod habrios (other than in
relation to not having to return a lost object, which is very specific)?
Are you saying it is halacha Moshe m'Sinai?  It appears to be one of these
fuzzy cases where proof texts are sometimes brought from Nach, but
technically for a d'orisa don't you either need a proof text, or a statement
that it is halacha Moshe m'Sinai?

I read the surprise in the gemora that kovod habriyos overrides the mitzvah
d'orisa of listening to the rabbis as indicating that it is by definition
something less than a full fledged d'orisa.  Were it a full fledged d'orisa,
would  this be such a surprise - would not it be obvious that it would
override what the rabbis said.

> : 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.

Only according to Abaye.  According to Rava it would seem it would even
circumvent shemittah d'orisa (not that that necessarily means we have
shemittah d'orisa, but that is not how it works).

> 
> : 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?

No, I don't believe that any of these relate to pikuach nefesh.

But you have to get back to basic principles.  A rabbinic enactment in any
form or fashion cannot simply allow you to violate a lo ta'aseh of the
Torah, and certainly not one of shabbas. It doesn't matter what it is, the
level of power isn't there.  It can allow you to violate other d'rabbanans,
it may allow you to violate by way of shev v'al ta'aseh, it may (as we saw
in shmitta above) allow you to violate a d'orisa in relation to monetary
matters with the power invested in hefker beis din hefker.  It may allow
kiddushin to be uprooted (as we see with somebody who nullifies a get after
sending it but before it is received by the woman), but there is just no
inherent power to allow a violation of a lo ta'aseh of shabbas without
pikuach nefesh at the back of it.  

> 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.

So long as you accept the concept of mishum eiva as rabbinic, then while it
can be the guiding principle that causes the rabbis to make various
enactments, it cannot of its own accord deal with d'orisas.  But I don't see
that as a problem.  In many of the mishum eiva situations, the rabbis are in
fact uprooting a d'orisa allocation of property (whether between husband and
wife, interfamilial etc) using the principle of hefker beis din hefker.
Mishum eiva is the guiding light which is causing the rabbis to act (and
yes, there may well be imitatio dei type considerations in terms of creating
hatred in the world), but hefker beis din hefker is the means, otherwise
they would be powerless to pursue the goal of diminishing eiva.  Similarly
with uprooting kiddushin, the means for doing so is that all kiddushin is
made according to the daas of the rabbis, but the reason the rabbis might
choose to do so in a particular case could in theory have been mishum eiva.
Similar considerations are also clearly at play here, but without pikuach
nefesh, the rabbinic power is just not there.

> Tir'u baTov!
> -Micha

Regards

Chana