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

[Micha Berger]

On Fri, Aug 19, 2011 at 12:01:54PM +0100, Chana Luntz wrote:
:> 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".

But we're talking about when Chazal can tell you to violate a
deOraisa. Not when they tell you not to excercise a right. 17 beTamuz
tells me I can't eat at a time when halakhah permits. Pretty much every
deRabbanan involves my giving up something that al pi deOraisa I would
have gotten. (Even if it is "just" time...)

: 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.  

Rabbi Yonasan Sachs. He does not use the same first name as CR Lord
Jonathan Sacks (although I wouldn't be surprised if that's what's on
his US birth certificate), nor the same spelling for the surname.

He spoke about shehiyah vs chazarah. I was repeating what he said when
discussing the chiluq between gezeiros and other dinim derabbanan (DDR),
that a gezeirah can call for violating a deOraisa besheiv ve'al ta'aseh,
but other DDR cannot.

You brought in shemittah, not I.

I still don't think shemittah is even applicable, since there are no lavin
or chiyuvin deOraisa that the deRabbanan tells you to violate. They tell
you to forgo a debt.

And besides, within dinei mamunus and dinei ishus, beis din has powers
other than the general ones -- hefqer BD hefqer and kol demeqadeish al
daas derabbanan meqadeish, respectively.

Again, I was just trying to be more specific about what you wrote
about when chazal can order a shev ve'al ta'aseh. Not in a din built
on trying to implement an idea from the Torah (eg turning pirsumei nisa
into neir Chanukah or Megillah), but only when making a gezeirah (which
is legislation that prevents accidental violation of another deOraisa).
Obviously, if one is calling for the violation of one deOraisa as part
of a new law to protect another, it would only make sense if the one
being protected is more chamur.

: > 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.

I doubt that, since he built his kelal using far more examples than I
recall. But yes, it is possible RYS erred. (It's more probable we did,
though. WADR to your formidable knowledge, a RY at YU with photographic
memory is less likely to err than we are. And I mean that comment about
his memory literally; I have seen RYS "read" pages without the book in
front of him.)

...
: > 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).

Lo sisna would make eivah between two shomerei Torah uMitvos ("achikha")
to be a deOraisa. Ben Zoma says "Eileh toledos Adam" is the greatest
kelal gadol. Isn't he using a pasuq to prove an obligation that eivah
toward any human being would violate?

And yet that obligation wouldn't be in the Rambam's count, because it's
too broad to stand bifnei atzmah (shoresh 4).

:> 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.

It is interesting. Too much so for me to comment yet.

:-)BBii!
-Micha

-- 
Micha Berger             It's never too late
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