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

[Chana Luntz]

I wrote:

> :                        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?
> 
> I don't understand the question. I'm talking about violating an issur
> or chiyuv deOraisa. Is there a chiyuv to collect your loans?

No, but if collecting the loan is mutar d'orisa, then by enacting shmitta
d'rabbanan, the rabbis are forbidding somebody acting on his Torah given
right to collect his loan.  Now the gemora (not me, the gemora) on Gitten
36b raises this as a problem with the rabbis enacting shmitta d'rabbanan,
and Abaye gives the answer "shev v'al ta'aseh hu".

Now you said, in the name of R' J Sachs of YU that rabbis can only enact
enactments which rely on shev v'al ta'aseh in the case where they are
protecting more chamur mitzvos (the case presumably you were thinking of is
shabbas vis a vis shofar).  But Abaye says that they are relying on shev
v'al ta'aseh to enact shmitta d'rabbanan.  What more chamur mitzvah is being
protected here like shabbas is being protected vis a vis shofar?   It
therefore seems to me that you (or RJS if this is really his argument) are
arguing with Abaye on the nature of shev v'al ta'seh.  

If that is not your argument (or alternatively that the more chamur mitzvah
is the memory of shmitta - but how can memory be a d'orisa) - then what case
is there that limits the power of the rabbis to use shev v'al ta'aseh - I
need a practical example where you or RYS would hold that the rabbis could
not use shev v'al ta'aseh, in a circumstance where they could possibly want
to do so (and that does not violate your assertion that kovod habrios etc
are d'orisas).  If there is no such case then would not the principle be a
bit meaningless?

> Which would seem to indicate that either
> 1- Kavod haBerios is deOraisa, but not as high of a priority as to
>    justify a qum va'asei. Or,
> 2- Laws protecting Kavod haBerios are gezeiros. (Which by RYS's rules,
> as
>    I understood them, would require that there is a deOraisa which the
>    kavod haberios legislation is protecting from violation. Ie back to
>    #1.)

Or of course RYS's rule is not true, ie there are principles such a kavod
haberios which don't have the status of full fledged d'orisas but shev v'al
ta'aseh is allowed to be used anyway.
 
> But because of hefqer BD -- IOW, the money really isn't moving because
> shemittah no longer exempts the loan, but because BD artificially move
> it themselves.

Agreed.  The point is that the rabbis are using the power of hefker BDH to
circumvent an issur d'orisa (not challenge it, circumvent it, which is what
I gave as an example of a power that the rabbis had).

> There is a machloqes Rashi and Tosafos as to whether Rava is replacing
> Abayei's answer, as you assume, or is adding to it. IOW, according to
> Tosafos, Rava invokes HBDH to override "gadol mimenu", not the
> deOraisa.

But that I think is because we posken that today shmitta is d'rabbanan, so
Rava would then have had to have been speaking theoretically if he was not
in fact adding something.  That does not necessarily mean (and I don't
believe there is anything in the gemora or Tosphos that states that it does
mean) that if in fact shmitta was d'orisa, then Hefker BDH would not and
could not work - which is why I included this in and example of the power of
rabbis to go around mitzvos d'orisa if necessary.

> : 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....
> 
> Which is the second assumption that something is derabbanan. (Kavod
> haberios and now mishum eivah.)

Kovod Habriyos I am mesupik about, it runs very close to allowing violating
d'orisas.  Mishum eiva is, as far as I know, treated throughout as a
construct of the rabbis, and I had never thought about it as a d'orisa.  You
see, if you abandon RYS's principle, then the rabbis have the power to use
shev v'al ta'aseh and hefker beis din to forward aims that we cannot
necessarily pin directly on a pasuk (although they are much in evidence in
Nach, and seem fit as part of the moral underpinning of the Torah).

> I'm arguing that preserving human dignity and avoiding enmity are both
> chiyuvim deOraisa. (At least there is a consistent trend emerging to
> my madness.)

Interesting, I wonder if we can link this up to the other thread we are
debating.  How about the principle of emes, which seems to share some
aspects with human dignity and avoiding enmity (in particular there are
specific sources that enable it to get pushed aside for these two - think
about Yosef and his brothers).  Of course there is a clear d'orisa source
for that - m'd'var sheker, but that only strengthens the case.

 
> Tir'u baTov!
> -Micha

Regards

Chana