Tuesday, July 29, 2008

Decree when the reason no longer applies

Tosfos (Daf Yomi: Gittin 18a) asks: One of the reasons mentioned for the decree that the date should be recorded on a get is because perhaps the husband will want to save his niece from capital punishment if she committed adultery. Nowadays, Tosfos asks, when we do not execute anyone, why is there still a necessity to write the date in the get?

The Avnei Neizer (E”H: 188) cites a challenge to Tosfos’ question: Although the reason may not be applicable, the sages’ decree should still apply unless a greater Beis Din comes and nullifies it!

He answers that Tosfos understood that the initial decree was only established in a time and a place where they administered capital punishment. Accordingly, if nowadays, it is universal that we do not execute anyone, we are not nullifying the decree; rather, the enactment was never instituted for such cases. This is why it is not necessary for another Beis Din to annul the initial decree.

This would be comparable to that which Tosfos in Beitzah (6a) states: Tosfos writes that a matter that was only prohibited because of a specific concern will be permitted when the concern no longer exists. This principle justifies why we do not have to be concerned for water that was exposed at night and one is allowed to drink from it because in modern times snakes are not frequent in our homes.

The Gemora (Beitzah 30a) cites a Mishna that states that one is not allowed to clap or dance on Shabbos or Yom Tov. Rashi explains that the reason that one is prohibited from performing any of these actions is because they can lead to one fixing musical instruments. Tosfos states that this prohibition only applied in those days when they were experts in fashioning musical instruments. Presently, however, the decree does not apply, because we do not know how to fashion these instruments.

The Rema (O.C. 339:3) rules in accordance with Tosfos. Teshuvos HaRema (125) writes that there was an incident where a marriage occurred on Friday night and the people were not concerned that the groom would write the kesuvah, marriage contract on Shabbos. The reason for this permit was because it is not common in our times for the groom to write his own kesuvah.

Rav Shlomo Zalman Auerbach zt”l poses an interesting question. The halacha is that presently we do not have a legally qualified reshus harabim and for this reason one would be permitted to walk in a public thoroughfare on Shabbos while wearing various ornaments. According to this ruling, then, why are we still forbidden to blow shofar, shake a lulav and read the Megillah. Regarding these mitzvos there is a concern that one may come to carry the shofar, lulav or Megillah in the reshus harabim. Yet, the halachah is that our public thoroughfares are not deemed to be a legal reshus harabim, so we should no longer have these concerns.

Reb Shlomo Zalman also questions the opinion of the Raavad who maintains that muktzah is forbidden on account of a rabbinical decree that one should not come to carry into a reshus harabim. Why should this decree still apply when there is no longer a legally qualified reshus harabim?

Rav Shlomo Zalman explains that Tosfos is only referring to musical instruments. In previous times, everyone was capable of playing and repairing musical instruments. For this reason there was a decree prohibiting clapping and dancing. In our times, however, only a minority of people is capable of fixing musical instruments and because it is uncommon for people to fix musical instruments, there is no necessity for the decree against clapping and dancing.

Rabbah (Beitzah 5a) maintained that Rabban Yochanan Ben Zakkai rescinded the prohibition against accepting witnesses after the offering of the afternoon tamid sacrifice, and subsequently an egg that was laid on the first day of Rosh HaShanah was permitted to be eaten on the second day. Rav Yosef challenged Rabbah’s ruling because if the Chachamim assembled to render a ruling, they would need to reassemble to revoke their ruling. Rav Yosef added that one could not say that Rabban Yochanan Ben Zakkai convened with his colleagues to permit one to eat the egg, because their decision was only to accept the testimony after the offering of the afternoon tamid sacrifice, but they never took a vote on permitting the egg to be eaten.

Tosfos HaRosh in Avodah Zara (2a) rules that one is permitted to conduct business with gentiles during their holiday season as initially this was prohibited because gentiles in the past worshipped idols and now that gentiles do not worship idols, the decree is irrelevant.

Tosfos in Brachos (53b) writes that people are not scrupulous regarding mayim acharonim, washing the hands at the end of a meal, because we no longer have melach sedomis, salt from Sodom. Tosfos notes that although the practice of washing mayim achronmim was instituted by an assembly of a Bais Din, this institution was not unanimously accepted and thus this institution is not categorized as a ruling that is irrevocable unless a Bais Din reassembles and rescinds the ruling.

Reb Shlomo Kluger in Elef Lecho Shlomo (116) rules that one is permitted to learn by candlelight on Shabbos and we are not concerned that he may come to move the wick which will cause the fire to burn brighter, thus violating a biblical prohibition, because one does not need to move the wick of our present-day candles.

Teshuvos HaRosh (klal 2:8) rules that one is permitted to tie strings of linen on a four-cornered garment that is made from linen to fulfill the mitzvah of tzitzis and we are not concerned that one might tie strings of wool to the garment. The reason for this ruling is because all know that techeiles, a blue-dyed wool used for tzitzis, is not prevalent, thus there is no permit to tie strings of wool to a linen garment.

Teshuvos HaRosh writes that if is common knowledge why a decree was instituted and the rationale no longer applies, then the decree is considered irrelevant. Teshuvos HaRosh draws a contrast of this supposition to the case in our Gemora regarding the egg that was laid on the first day of Rosh HaShanah, because some people are not aware whey the egg was initially prohibited, nor do they understand why the reason to prohibit no longer applies.

Shearim Mitzuyanim B’Halachah rules that if necessary, one is permitted to take medicine on Shabbos. Taking medicine on Shabbos was initially forbidden as there was a concern that one would violate the prohibition of grinding. Now that medicine is prepared by the manufacturer and most people are not even aware of the process involved in manufacturing the medicine, there is no longer a concern that one who wishes to take medicine will violate the Shabbos prohibition of grinding herbs or spices.



Michael Post said...

Why is kitniyos not a prohibition whose reason is common knowledge and no longer applies? It is a minhag that developed, which should, I would think, make it even easier to break when the reason does not apply to a d’rabbanan anymore.

Am I correct in assuming that a commercial business that produces rice almost certainly has a large area (probably someone in China) that does nothing but nice? There probably isn’t wheat or anything else even close by. Similarly, these companies are probably so huge that each type of bean, etc… is grown in large fields that do nothing but that type of bean.

I’ve never understood the whole thing in the first place, since even “back then”, a tiny piece of wheat making its way into the rice fields would be bitul b’shishim as long as everything is harvested and prepared before Pesach, right?

Rabbi Neustadt said...

Your questions are debated by the poskim, and all rejected, the main reason being that once it became assur we can’t be matir even if the situation changed. IN addition, they were worried about Kitniyos that are ground into flour, and then baked into similar to bread items, which might confuse the am haaretz to use any flour.

M. Post said...

Rabbi Neustadt’s response was that once something is established, it cannot be taken away, but wasn’t that the whole discussion? Shouldn’t the fact that clapping was forbidden X thousand years ago and then permitted (X – 1) thousand years ago be evidence that a d’rabbanan protecting from a situation that no longer occurs CAN in fact be taken away? Kal V’chomer a minhag. The question at hand is whether or not the principle of “once something is established, it cannot be removed” is ITSELF in effect always, under certain circumstances, or never. The fact that rabbis generally hold that way today seems to be countered by evidence from the Gemara. So why can this principle itself not be altered? It appears that Rabbis today are using the principle itself to maintain the principle. In other words, “while back then, a d’rabbanan that protected from something that no longer occurs could be removed, today we hold that once a principle is established it remains established”. Why does it remain established? Because once the minhag developed to not take away irrelevant minhagim, it cannot be changed. This is circular logic at best, and so needs to be understood.

A while back I was going to do a Purim skit with a frum couple from the year 2050. One of the bits was going to be a lady putting flour, water, yeast, etc… into a machine, hitting a button, and 1 minute later pulling out a perfectly done challah. Then, the woman would take her finger and poke a whole through the side. When someone asked her about it, she would say “my grandmother used to make challahs with her bread machine, and they always had holes at the side when they came out. I follow the family minhag”. Not very funny, which is why I didn’t do it, but it goes to the point that sometimes rather unusual and poorly grounded minhagim can develop. Why can these things not “un-develop”?

R' Neustadt said...

In general, the rule is that once enacted a rabbinic edict does not disappear even if the driving reason behind the edict is no longer applicable, as long as a remote possibility still exists. When a remote possibility does not exist, then the edict is removed, such as mashkim megulim nowadays, according top most poskim. Tosfos might hold that the edict against clapping is similar to mashkim megulim, the other Rishonim hold that a remote possibility for fixing musical instruments still exists and it is not similar to maskim megulim.

Another possible explanation to tosfos is, that this edict was never totally accepted even when it was enacted, as the gemara says in Beitza 30 that it was never adhered to and we did not object. Although that alone did not make the edict disappear, the combination of it becoming only a remote possibility plus the fact that it was never fully accepted, leads Tosfos to rule that it no longer applies today. The other Rishonim do not agree to this combination.

D.F. said...

These Poskim write that if the reason is not longer valid, the decree is no longer valid. In fact, that is one of the reasons we are allowed to dance and clap our hands on shabbos, even though it was originally outlawed for fear one might come to fashion an instrument - it is becasue we are not skilled enough. I beleive the Rama states this, but he is challenged by the Magen Avraham.

Question: The reason we are prohibited from swimming on Shabbos is b/c we are concerned one may come to make a flotation device. ( Contrary to the popular idea that it has to do with squezzing hair). But how many peopel today can do this? Should we then be permitted to swim on Shabbos

R.D.N. said...

Firstly making a floating device is a lot less complicated than making a musical instrument. Any geshikete fellow can make a makeshift floating device

Secondly, the Rama's shita is very difficult to understand even by music, and we dare not stretch it any more

Thirdly, and most important, the real reason why nowadays we do not swim is because of the old minghag Yisrael not to dip one's entire body on Shabbos even in cold water because of the concern that it may lead to sechitah or carrying; see Mishnah Berurah 326:21.

Rabbi E.N. said...

the comparison to clapping on Shabbos is a little different. Although the Rema says that we don't know how to fix instruments today, the Biur Halacha says from Elya Rabba that the Rema is not permitting every type of clapping or dancing. He's not clear what he does permit )I didn't see the Elya Rabba) but it sounds like he's saying that Chazal only prohibited certain types of clapping and dancing, and we're not going to prohibit any more since we don't know how to fix the instruments anyway. The Aruch Hashulchan says this clearly, that our clapping and dancing is a different type than they used to do....

Josh W. said...

consider whether to delete this comment or not, because of silliness or because of the fact that Rema himself says "mutav..."

The Rema in question is in Shulchan Aruch Orach Chaim, 339 seif 3, where he comments:
. הגה: והא דמספקין ומרקדין האידנא ולא מחינן בהו משום דמוטב שיהיו שוגגין וכו'. וי"א דבזמן הזה הכל שרי, דאין אנו בקיאין בעשיית כלי שיר וליכא למגזר שמא יתקן כלי שיר דמלתא דלא שכיח הוא ואפשר שעל זה נהגו * (י) להקל בכל (תוספות סוף פרק המביא כדי יין).

Thus, his first reason is that it is in fact wrong, but not to tell. He then proceeds to offer a rationalization for existing custom. I would say he is not pleased with this development, but his citation of the yesh omrim is part of a trend among Rishonim and Acharonim to rationalize existing custom even while expressing reservations about it. So one should not go out and broadly apply a principle which is applied with extreme difficultly and duress even where it was applied.

David said...

I heard Rav Shachter explain that it depends if the reason was part of the gezeira. Sometimes they made a gezeira for a reason and said that at the time. In that case the gezeira falls off. The reason wasn't stated for blowing the shofar until years later (the takana is mentioned in the mishna but the reason is only given by Raba) I wrote this up in my old blog a long time ago - adafaday

Avromi said...

I like the answer, but some of the takanos mentioned above did not become batel even though the reasons were said at the time of the gezeirah! But, i'll analyze more bli neder.

Anonymous said...

I believe the Vilna Gaon said that although melach sedomis isn't prevalent anymore, there are other reasons unbeknown to us for the takanah, and therefore it's sill enforced. Additionally, I heard bisheim Rav Elyashiv shlita that in Eretz Yisroel (or maybe specifically Yerushalayim) there's still a chashash of snakes regarding mayim megulim.

Phil said...

Would you be interested in a series of shiurim on this exact topic? It is probably longer than it needs to be, possibly because the rabbi (Rabbi Kerzner) is addressing a class whose knowledge of Talmud varies widely, and he reviews a lot. But it is still very good. (Your post was very good, too.)


He's not yet done with the series.