[Avodah] carrying an ID card on shabbat

Chana Luntz Chana at kolsassoon.org.uk
Mon Mar 18 04:21:30 PDT 2013

I wrote:
>> the halachic point that a shvus d'shvus b'mkom mitzvah would seem to 
>> be pretty standard,

And RZS replied:

>It is standard, but the standard condition is that it is impossible to
observe the mitzvah in even the most minimal way without violating the shvus
>dishvus.  That's what I'm questioning here.

Where do you see this in the sources?

The classic rishonic machlokus that I am aware of is whether this particular
heter of shvus d'shvus applies solely to the case of mila (Tosphos) or
whether it applies to all mitzvos (the Rambam hilchos shabbas perek 7
halacha 9).

And indeed much of the discussion surrounding this (see Orech Chaim siman
307 in the Beis Yosef, Shulchan Aruch etc) is about telling non Jews to play
musical instruments on shabbas at a wedding (that being the shvus (telling a
non Jew) d'shvus (playing musical instruments) with the mitzvah being being
to be mesameach chatan v'kala).  And while the achronim eventually back away
from this practice, based on various concerns that it was causing more
general zilzul shabbas, and arguing that if there was a power on the rabbis
to  ban even shofar and lulav on shabbas, surely they even in their day can
ban non Jews playing musical instruments at weddings on shabbas, with part
of this ability to ban being derived from noting that the mitzvah of being
mesameach chatan v'kala can quite adequately be carried out with meat and
wine and unaccompanied zmiros etc - ie the mitzvah is quite possible to be
observed in a minimal way without violating the shvus d'shvus - they have to
go to some great lengths to explain why they are no longer relying on the
Ravya and other rishonim who do allow the shvus d'shvus (see the long piece
in the Sde Chemed in helek 7 letter 13 (on page 31 of my edition)).  If it
were the case, as you say, that automatically if one can observe the mitzvah
in the most minimal way without relying on the shvus d'shvus, one does not
allow the shvus d'shvus, the whole discussion would never have got off the
ground in the first place and these rishonim would not exist.

Rather though, one could raise the challenge that (at least according to
some - Rav Moshe disagrees) that as the Yalkut Yosef writes in chelek
Rishon, in the section under Hilchot Tefila letter 3 in the footnote that
the mitzvah of tefila "b'tzibbur" "aina ele mitzvah min hamuvchar"  and is
not such a big mitzvah [v'aina mitzvah kol kach] like the Maharil writes in
the halacha of eruvei tachumim, "that which the Sages permitted an eruv in
the place of a mitzvah, this is like going to a house of feasting [for a
wedding] or a house of mourning, but this is not true of going to pray with
ten as this is not such a big mitzvah since he is able to make his prayers
in his house, that we do not find that the Sages allowed this to make up a
minyan of ten".  And similar to this writes the Chavos Yai'ir (Siman 115)
that he forbad to go in the boat of a non Jew on Shabbat in order to pray
with ten, even though it is a shvus d'shvus  ... in any event to pray with
ten is not such a mitzvah [aina mitzvah kulei hai].  And he brings a proof
to this from the Maharil.  And the Mehabit in the book Beit Elokim (shar
chasidut perek 38) writes that from the time of Moshe until the men of the
great assembly every one prayed individually in his house, and Israel was
not gathered to pray in public in a place specified etc  And see in the Shut
Yad Eliayahu Melublin (Siman 7) that in a situation involving the loss of
money there is no need to pray b'tzibbur.  And even the Magen Avraham (Siman
416 si'if katan 2) who disagrees with the Maharil (and see Yabia Omer chelek
6 Chelek Orech Chaim siman 10 letter 5), all agree that it is a only a
mitzvah min hamuvchar [a matter of doing the mitzvah in the choicest way],
So following the Chavos Yair then one might say that while in general a
shvus d'shvus b'makom mitzvah is permitted, specifically to go to shul it is
not - but as mentioned, others would seem to disagree.

>> Born in 1875 in Poland, was a Rav in Romania for a while. Immigrated 
>> to Israel in 1949. Died in Bnei Brak in 1963.

>Since you have the sefer, can you tell me the date and place of the

Unfortunately it is neither dated nor indicates the place - although it may
have been written to the Av Beis Din of Skolin (the problem is that he
tackles three questions in this teshuva, this is the first one, and it is
not clear to me whether all three came from this Av Beis Din or only the
last one and were just grouped together).  

>My point is that the circumstances in which it was written are highly
relevant.  Much of his professional life would have been spent in times of
war and >emergency, and even more of it in times when antisemitism was taken
for granted and "gezeras hamalchus" was a serious matter; ignoring it was
not a >viable option, and the idea of openly defying or fighting it was
simply inconceivable.

As mentioned not clear - all he says is - because of the gezera hamemshala
shenitchadesha byamim haachronim.  

>> Tricky - because while individuals (including police officers) may 
>> well be motivated by anti-semitism, the overall law is not

>I don't see how that matters.  It's not the overall law that's the problem,
it's the enforcement.  If the enforcement (in your hypothetical) is targeted
>at us, then it's close to "she'as hashmad", and since we *can* fight it we
should.  And an individual who compromises his observance in order to comply
>with it harms that cause.

But in my hypothetical, it is only targeted at us if because we are now
known to be law breakers - and it would be targeted at any group who
similarly law broke in this way (to witness the Muslim community).  I don't
think anybody says that if there is reasonable suspicion that Jews are known
to be avoiding taxes, there is a question of shmad if a tax official makes
it his business to raise from Jews the taxes that they are otherwise due to
pay, which everybody else is paying.  Yes if it is focussed on Jews, and
they let everybody else off, that is one thing - but if the law is
universal, but Jews aren't performing it, then the fact that some police
officer thoroughly enjoys hauling the Jews in, doesn't make it a question of

Now clearly if there is a conflict between obeying the law, and obeying a
Torah law, then there is no question, and it does not matter if the law is
universal - but if there is a way of obeying both the general law, and
invoking halachas such as shvus d'shvus, which makes it mutar, I can't see
how the shmad comes into it - the law was not brought in to stop Jews going
to shul, but to make sure that illegal immigrants did not endanger the
national security of the country.

>> If the Orthodox Jewish community fights this, and indeed does get the
authorities to back down, which 
>> again will need to happen publically, the same "heter" will then be 
>> available to the Muslim communities.

>How so?  What religious requirement do they have that would prevent them
from carrying ID on a given day (or ever)?  The Jews wouldn't be campaigning
>for the abolition of the ID law (much as that might be desirable on general
civil liberties grounds, the gemeinde is not the DCLU), but for reasonable
>accommodation of a genuine religious restraint, such as would be routine in
the USA (and would be legally required in the case of a federal law).

Claim a religious objection to carrying ID - I am sure somebody can find a
hadith somewhere that will do the trick.  You may find it dubious, and
indeed the court my find it dubious - but once you open this up to religious
objection it becomes very hard for courts or individual police to deal with
(and why should devout civil liberties advocates claim the exemption
everyday).  Or, for that matter, why can't the Al Queda operative claim
he/she is Jewish when stopped on Shabbat and run your most dangerous
operations on Shabbat - what's a policeman to do?  How can they sought
through those kinds of claims without hauling everybody who claims so off to
the police station.

And down at the police station, you are really in the situation of not being
able to perform the mitzvah in even the most minimal way, even were that
halachic requirement.

>Zev Sero



More information about the Avodah mailing list