[Avodah] Street Minyanim/sh'as hadchak

[Chana Luntz]

RZS writes:

<<I would argue that in all those cases, the fact that we can rely on an
opinion in an emergency means that we *really* hold that the halacha permits
this, but since there is so much opposition to it we may not rely on it in
normal circumstances.  If it is at all possible we should do better than
that, and satisfy more opinions.  Only when we have no other choice will we
fall back on the basic halacha.

Again, this appears to me to be  merely a question of terminology; what do
we mean by the term "ikar hadin".  I'm using it one way, you're using it
another way, so we appear to disagree when in fact we're using different
words for the same thing.>>

Well as we know from Humpty Dumpty, words can easily be asserted to be
whatever the assertee says they mean, so that "glory" can mean a "nice knock
down argument" - because Humpty Dumpty has decided that is what it is to
mean.  But more generally we determine the meaning of words by looking at
the way words are used by authoritative others. 

In our case, the question, it seems to me, is do our meforshim use ikar
hadin to include a halacha that can only be applied in a sha'as hadchak
situation?

My understanding of ikar hadin is that no, ikar hidin means the basic
halacha, without the layering on of chumra (eg. ba'al nefesh machmir), but
that is not what is being applied in a sh'as hadchak situation.  I do agree
that it can be used in contrast to minhag.  So that the ikar hadin may be X,
but if the minhag is Y and a sh'as hadchak requires one to dispense with a
minhag, then it would be true to say that one falls back on the ikar hadin,
so in that context your understanding would be correct.  However, in
circumstances where we are not dealing with minhag (as we are not in the
gemora), but different halachic authorities ruling differently, it seems to
me that the understanding is different  - that what a sh'as hadchak enables
us to do is push aside the ikar hadin (where we rule one way), and fall back
on a position that is not and was never labelled ikar hadin, and follow that
position.

In that respect it seems to me that sh'as hadchak is a meta-halachic
principle, like darchei shalom, kovod habriyos and aiva, or for that matter,
(but also on a d'orisa level) pikuach nefesh.

Now, this is just me articulating how I have always understood it, so the
question becomes how can I justify this position?

And it seems to me that I can only justify my position by quoting poskim who
use the language as I do, and you can only justify your position by quoting
poskim who use the language as you do.  And of course most poskim when
commenting on a sh'as hadchak situation don't necessarily explain what they
are allowing in the sort of language that makes it clear.

So here are a couple of cases I have found that, it seems to me, make it
clear that at least certain poskim are using the language as I am.  Now that
I am looking out for it, I will no doubt find  others in my travels through
the sea of the halacha:

- the Sde Chemed in his index (vol 9) under Sh'as hadchak describes the
entry as follows "l'samuch al mi sheain hahalacha k'moso b'shas hadchak".
To me, if you say that the halacha "is not like him", that makes it clear
that the ikar hadin is not that way, and the allowance to rely on him in a
sh'as hadchak is a leniency taking away from the ikar hadin.

- Igeros Moshe Orech Chaim chelek 1 siman 51, discussing the location of a
mikvah in the women's gallery has a paragraph (fourth paragraph) in which he
discusses that even where the halacha is that we follow the rabbim, one is
permitted to rely on a yachid in a sh'as hadchak where the matter is
rabbinic.  He then follows with a paragraph that starts: " aval b'emet yesh
l'hatir af l'dina" - but in truth there is to permit even l'dina.  That is,
in the case under discussion, one could rely on the psak of a yachid because
we are in sh'as hadchak territory, but we don't need to, because l'dina the
halacha is that it is permitted.  Suggesting to me that Rav Moshe is using
the terminology the way I am, that what he suggested in the fourth paragraph
is not ikar hadin, only the fifth paragraph contains that.

I will keep a watch out, and if I see any more examples where the language
used by the poskim touches on this issue, I will bring them.

>Zev Sero            Wishing everyone a *healthy* and happy summer

Shavuah tov

Chana