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

[Chana Luntz]

RMB writes:

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

You don't, but Abaye does.  Abaye uses the language of shev v'al ta'aseh.
All I am pointing out is that according to you (and perhaps according to RYS
if you have reported him accurately), you have to tell Abaye that his
statement is not applicable and/or wrong (as so presumably is the whole hava
mina of the gemora).

> 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.

But nobody is talking about a "violation" of a d'orisa - by which I would
understand a violation of a lo ta'aseh.  We are taking about shev v'al
ta'aseh, which is a deliberate failure to perform.  In that case I don't see
that there is any necessity to ensure that the one being protected is more
chamur is the sense that it is a Torah priority rather than a rabbinically
determined priority.  Note by the way, that this RYS idea clearly falls away
if he holds that the obligation to study Torah day and night is from the
Torah,  because then any positive rabbinic obligation (including megila and
ner channukah) is taking away from the time a man has to study Torah. Not
sure what the case of shehiya versus chazara from which RYS is apparently
deriving all this - but how about (not) bringing a knife through a carmelis
for a bris if one forgot to bring the knife before shabbas?  That is
effectively a shev v'al ta'aseh situation, the bris cannot be performed
(assuming no non Jews around) - although again I suppose you would say that
this is a protection lest you bring the knife through reshus harabbim. But
note we are now two steps removed, not one.

And I cannot agree with you that "it would only make sense if the one being
protected is more chamur" meaning that it is an explicit d'orisa.  I can
definitely see a case for allowing the rabbis to decide that certain
rabbinic priorities, based on Torah values, at certain times should take
priority over performing a Torah obligation (even if it was not in fact
true, it would be a reasonable position to take).  And since surely the
assumption has to be that the rabbis only ever enacted anything based on
Torah values, whether technically protecting a more chamur issur d'orisa or
not, then all rabbinic enactments would fall into this category.


> : > 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.)

But you see, the nature of the statement you have brought in his name is one
of induction.  That means that no matter how many examples he brings, any
*one* example to the contrary will falsify it.  That is, nobody is going to
disagree that in many of the cases where the rabbis required people to shev
v'al ta'aseh, they will be protecting another issur d'orisa, so he can bring
as many examples as he likes to show this without proving the principle.
The only way to prove the principle is to go through every single case of a
shev v'al ta'aseh of a d'orisa and show that (according to everybody we
posken like at least) the reason for the gezera is protecting something
d'orisa and more chamur.  That is a huge burden of proof and while it is
much easier for somebody, even without a photographic memory, to falsify it
than for anybody to propose it.

And, as you have identified, it seems to mean that RYS has to see Kavod
Habriyos as d'orisa - so where is he getting that from?  And, at the very
least, nobody can say that it is a particularly "chamur" d'orisa, given that
it is not powerful enough to overrule anything except listening to the
rabbis and shev v'al ta'saeh.  Unless you say something more chamur includes
important principles of the Torah, like kovod habriyos, but once you start
saying that, then surely anything the rabbis institute is done for to
further the underlying principles of the Torah as I have said above, and the
whole distinction falls away.

> : 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?

Note by the way that the same Encyclopedia Talmudit article that I pointed
you to originally also states explicitly that while there are achronim that
dispute whether or not mishum eiva can push aside a d'rabbanan, all appear
to agree it cannot push aside a d'orisa - so you are taking a position
beyond that of the achronim.  

That said, exploring your ideas further, because I do think they are
interesting, lo sisna would not seem to be wide enough to include akum.  I
was thinking more about the flip side of being rodef shalom (ie minimising
aiva is surely the first step towards creating shalom, the link between
meshum aiva and darchei shalom being pretty close), and then you get into
ideas of shalom bayis (and the permissibility to obliterate HaShem's name
for that as per sotah), shalom within a family (Yosef and his brothers),
shalom within a society etc. I don't know that anybody has ever gone where
you appear to be going (would love to know differently), but there seems a
lot of logic to it.

> :-)BBii!
> -Micha

Regards

Chana