Are There Declarative Laws? (Column 293)

A few comments,

First, I’ll give an example of a case where, in my opinion, there is considerable room to say what you suggested regarding preventing a transgression, and yet I still think that with the three cardinal sins the matter is different.

I’ll דווקא begin with a case that seemingly involves the three cardinal sins, and yet a person is still allowed to remain in the category of passive non-action, even though he is killing with his own hands and would not be liable under the law of murder.

The witnesses who testified that so-and-so desecrated Shabbat and thereby made him liable to stoning—except that their testimony was false testimony—once the verdict has been rendered, they can no longer retract their testimony, by the rule that once one has testified he cannot testify again differently. But there is a creative solution for how to prevent the terrible injustice: they could cut off their own hand, since when the witnesses’ hand has been cut off their testimony is not carried out. It seems to me that in such a case they are under no obligation to cut off their hand (and even regarding the prohibition of murder I am not sure they would transgress, since they are carrying out the court’s ruling).

It is just that, in my opinion, in the classic case of the three cardinal sins, there is room to understand that his entire continued life is in the category of “one who blasphemes,” and the Rambam’s leniency is also understandable, since after all the situation is not easy and there is room for repentance. But clearly there is no room here for considerations like “a transgression for its own sake,” for if so, all three cardinal sins are emptied of all content, since on the face of it the overall consideration is preferable to one severe transgression, however grave it may be. The possibility you suggested—that “let him be killed rather than transgress” is only in order that he understand the gravity of the transgression—seems to me very far-fetched (if that is what you meant).

Another point: in my opinion one should distinguish between a person who is in a situation like a fire, where he acts out of instinct and Hazal merely wanted to ground him, and for that reason allowed him what they allowed, because they understood that otherwise he would act out of unrestrained emotion. Therefore it seems simple that if their intention was not realized and he nevertheless transgressed and saved property, there is definitely room to understand that he did not transgress any prohibition at all, because it is clarified retroactively that the person was seized by panic, and was gripped by a kind of frenzy and is a kind of one acting under compulsion (his property compelled him) regarding a rabbinic law. But a person who acts with a clear mind, as in the case of removing bread from the oven, there it seems that if it is still indeed forbidden by a rabbinic prohibition, then he is forbidden to prevent the grave prohibition (and that is God’s will in such a case), so he also has no reason to do so—unless they will kill him, and as you wrote, that does not mean he is allowed to do it, but it also does not mean this is an easy trial, and it is understandable that if he transgressed and acted, he is considered one acting under compulsion for the sake of his life.

However, a person who arrives with calculations of “a transgression for its own sake” and permits a rabbinic prohibition such as poultry with milk in order to gain a biblical mitzvah seems to me obviously to be in the category of “one who blasphemes.”

Especially if we say that the foundation of rabbinic prohibition is biblical, except that they treated their own words more leniently than prohibitions explicitly forbidden in the Torah (or even through their interpretation).

And I’ll conclude with a simple man’s remark: what is this, isn’t it Passover eve by you? You can cause shalom-bayit problems. It’s busy enough as it is, and your columns don’t leave room to stand by the side and not read or not respond, and this really comes a bit at the expense of Pesach… Maybe let’s calm things down a bit until Hol HaMoed. You are coercing us, and thanks to you we are indeed exempt from the cleaning… but this could end up violating “placing a stumbling block before the blind”…

I think there is a much simpler solution. Let them tell the court that they lied. The court will not execute the defendant. Formally, one cannot retract testimony once given, but a court can punish not according to the strict law, and it can also refrain from punishing not according to the strict law (something like a suspicious case, but after the ruling). I have written several times about other cases in which a court should act this way. For example, when two relatives come and invalidate two witnesses to a murder. Since relatives’ testimony is invalid by scriptural decree, and in truth they are presumed trustworthy, it is obvious that they would not execute the defendant in such a case.
As for your claim that there is no obligation to cut off the hand, it seems to me that according to the views that there is an obligation to save someone from a transgression already committed, here there would be a full obligation to do so. And I am not sure that this is not true according to all views. They have the status of a pursuer, and if it is permitted to kill them, it seems permitted also to cut off their hand. Think about a person who is falling onto another person intentionally in order to kill him. Is he not obligated to move aside and save the pursued one? In my opinion it is obvious that he is.
With the three cardinal sins, an explicit halakha was stated, so it is not reasonable to see this as a mere declaration. There they really did the cost-benefit calculation, and the conclusion is that it is preferable to surrender one’s life even at the price of losing one’s life and the mitzvot that would be done through it. Apparently this is a consideration of the public as a whole.
As for the rest, I will leave it to the readers’ judgment. I will only note that although some have written that in every rabbinic prohibition there is a Torah prohibition, only that they treated it more leniently, in my humble opinion this never existed and was never even paralleled by a metaphor. This is a simplistic and mistaken understanding of the Rambam’s view. I elaborated on this in my article on the first shoresh and in my book Ruach HaMishpat.

For me too it’s Passover eve, but we are not celebrating the Festival of Spring this year. In any case, that leaves plenty of time.

Regarding humiliating one’s fellow in public, I think that according to Tosafot, just as there are “accessories” of forbidden sexual relations, so too there are “accessories” of murder.

Regarding Rabbi Yehuda, is there not also a problem there of desecration of God’s name, in that he rises and steals a shepherd’s food?

That is clearly the plain meaning of Tosafot’s language. But as I noted, this is a very puzzling idea.
Regarding Rabbi Yehuda, if I am right then he did it because of the frenzy, or because he decided to commit a transgression in order to save his life. So now there is also the transgression of desecrating God’s name.

Regarding the solution you suggested, that the witnesses should reveal to the court that they lied and thereby prevent the injustice, I would be glad to receive sources, if there are any, regarding refraining from punishment not according to the strict law (aside from your plausible reasoning).
But still, if and when the wicked witnesses remain in their wickedness and try to carry out their plot, on what basis do they have the law of a pursuer? After all, in the end they are carrying out the court’s ruling. And if we say that it is obvious they have the status of a pursuer, would we say this also in a case where an outside person knows that the witnesses are mistaken and they themselves are unaware of their mistake, and they are coming to kill the person on the basis of an error (such as a legal error based on an explicit mishnah, incorrect facts, wrong identification, etc.)? Would they also then have the law of a pursuer, such that it would be permitted for the outsider to kill them or at least to save him through injury to one of their limbs by cutting off the witnesses’ hand?
And regarding the analogy you brought: if we accept my above claim, then a court ruling is different from an ordinary possibility of saving a person from death.

Regarding what you wrote, that with the three cardinal sins, since an explicit halakha was said about them, it is not reasonable to assume they are a “declarative halakha,” I would like to propose a formulation here that will distinguish when we say that the intention of a halakha that explicitly says one must be killed is literal, and when one may accept it if he transgressed it—and not only in the Rambam’s opinion.

I will preface by saying that in my opinion the Rambam himself, who exempted from death one who transgressed the three cardinal sins, was obviously speaking in cases where compulsion is not considered like an act, and in cases such as a woman who is like the ground of the world, and it seems to me that this case too is the basis for deriving the Rambam’s position on the matter. But he would still agree with Tosafot in cases where the person transgressed and acted knowingly and of his own good will.

The explanation is simple: if the halakha explicitly said that it is preferable that he be killed, then his whole continued life is not according to the Creator’s will, and he is in the category of “he does not bless but blasphemes.” But in cases where it is not considered like an act, then in the end the act is not attributed to him (although it is still severe), and therefore the Rambam and Tosafot disagree whether in such a case this is forgiven, or whether in the end, since he should have been killed, he is liable to death. Even though it is not considered like an act, it is similar to a priest’s wife who was raped: even though she is not at fault and this is the classic case of “not considered like an act,” nevertheless she is forbidden to her husband.

And I will give an analogy. In any sports competition whatsoever, if there is an iron rule that cannot be violated under any circumstances, namely that one may not use drugs as a stimulant, then it is obvious that if the athlete violates it and uses them in order to produce the best result, he will be disqualified and sent away like the worst of thieves, even if his aim was to strengthen the sport itself (something like “a transgression for its own sake”). In the end, this is the primary basis for participation in the competition itself. And the analogy is obvious: if the Creator explicitly tells you that He does not want you to stay alive and serve Him if your entire existence is by violating His will, then all your cost-benefit calculations are irrelevant. In the end, He is the one who determines the rules of the game. Of course there is room for dispute in a case where the athlete was forced and injected by coercion; there one might perhaps accept his excuse, and that is the Rambam’s view—to continue letting him compete.

Consequently, on the basis of this distinction (if you accept it, of course), there is room for the same distinction even in rabbinic law, in cases where an explicit halakha was said on the matter: that if he violates it, he is in the category of “one who blasphemes.” For in the end God determines the rules, and here He gave the Sages the power to determine what the rules are, and if you violate them you are out of the game. And there is seemingly no gain if he does not act (such as in removing bread from the oven): either way he will violate God’s will—or he will act and violate God’s will that you obey those in whom He placed His trust, namely the Sages.

Especially according to the note you wrote regarding rabbinic laws, that obviously there is no Torah prohibition in them (and the Kovetz Shiurim in Kunteres Divrei Sofrim already preceded you, that obviously this is not true; I meant those who say otherwise). For the suggested explanation—at least the one I know, namely Rav Elchanan Wasserman’s explanation—is that God’s will is revealed through them. If so, then there is no room for an active deed, for in the end in both cases the Creator’s will is not fulfilled, and perhaps it is even preferable to do nothing, because now the Creator’s will is that you do nothing. (It does not seem that what bothers Him is that the bread gets baked; the non-fulfillment of His will is what bothers Him, so to speak.) And in the sugya in Shabbat it seems one must say that the doubt is whether the Sages maintained their words even against Torah law or not; and if not, then there is no rabbinic prohibition at all.

And one should not object from “a transgression for its own sake” (which is a complicated matter in itself). It seems one should distinguish, because there no explicit halakha was stated for the extreme cases that occurred there, especially since there were considerations of overall public cost-benefit (whether Lot’s daughters saving the world, or Judith whose aim was to save the people of Israel), and therefore there is room to understand that here indeed the Creator’s will is that we violate the normal rules of the game. (After all, it is impossible to write an exception for every extreme case that might arise; there is no end to it. One simply has to use one’s head.) Assuming, of course, that you are capable of that and are not acting from subjective motives.

Too bad you are not continuing the thread that these matters revolve around.
1. Why do I need a verse? It is pure reasoning.
2. They shot an arrow, and now it is about to strike. Incidentally, I seem to recall a Tosafot HaRosh in Sanhedrin, in the chapter Ben Sorer, that treats conspiring witnesses as a pursuer.
3. You are using the expression “compulsion is not considered like an act” in a confusing way. That is not the accepted usage in the Talmud.
The Rambam in Hil. Yesodei HaTorah 5:6 distinguishes between illnesses and coercive situations, somewhat along the lines of your point. But the fact that he does not distinguish between “ground of the world” and another coercive case seems not to fit what you are saying. And in general, from his wording there it is quite clear that you are not right. There is no hint there that he is speaking only about “ground of the world.”
As for your analogy about performance-enhancing drugs—it seems to me that this is what I wrote.
But the conclusion regarding rabbinic law does not seem right to me. See the Tosafot in Shabbat that I cited, which wrote to deny the existence of a prohibition because he certainly would not obey it. Those who disagree with Tosafot hold that perhaps there can be a prohibition here, and nevertheless the practical assessment is that people will not obey it. Therefore, a person who acted this way is a reasonable person.
Your other comments there ignore the fact that we are not talking only about the severity of the prohibition but about saving one’s life. A person is not supposed to obey a rabbinic prohibition because naturally he will save his life, and not because the severity of the biblical prohibition from which he is saved justifies violating a rabbinic prohibition.
With “a transgression for its own sake” we are dealing with laws that were stated entirely explicitly. Adultery with one’s father (Lot’s daughters)—was that not stated explicitly? A married woman—was that not stated explicitly (Yael)?

1. Regarding the reasoning—would you say the same also about witnesses who erred, that they are pursuers?

2. Regarding shooting the arrow: if a person misled witnesses by an indication that caused them to testify against him and make him liable to death (for example, he succeeded in misleading them about a day being Shabbat, and on that basis they testified against so-and-so), who would be considered the one who shot the arrow, so as to classify him as a pursuer?

3. I accept the correct comment about the confusion regarding “compulsion is not considered like an act,” and I definitely meant the Rambam’s distinction between a coercing person and an illness (where the difference seems to be in the calculations of cost and benefit that the person makes, despite the fact that Heaven has revealed to him what the correct calculation is).

4. Regarding Tosafot, and really regarding your main claim, I’m not quite managing to understand: what difference does it make what the reasonable person would do in practice? Tosafot was speaking practically: that if a person understands that if he does not right now violate a rabbinic prohibition, they will behead him—or more accurately throw him off the roof—it is certainly not logical that a person would heroically withstand such a difficult trial. All the more so, as you aptly mentioned, that same person intentionally violated a biblical prohibition only a few seconds earlier. I do not think that your intention in the post was to ask theoretical questions about how we would behave in trials of huge sums of money or life versus death when we face the temptation of a rabbinic prohibition. After all, if you put a person in front of poultry with milk (or just slightly moving a stone on Shabbat) and offer him a million dollars in exchange, I don’t think the test would be easy. (In such cases, presumably the person will suddenly feel like Abraham at the binding of Isaac and indeed refrain; psychology ought to work that way, in my opinion.) In any case, it is clear that one cannot infer from here that muktzeh or poultry with milk are merely declarative prohibitions, and each case must be calculated on its own in terms of cost versus benefit.

5. The matter of saving one’s life seemingly is no different, because once again this is about practice—what the person will actually do. But again, in such cases there is room for very great leniency, not because the prohibition is declarative but because the test is difficult. It makes sense that Tosafot understood that perhaps we gain nothing by imposing a prohibition that people probably will not heed anyway, and perhaps this would only lead to contempt for the words of the Sages. After all, the Sages did not come to make life difficult for us and add prohibitions for no reason; they had a purpose. And if the purpose is likely not to be achieved, there is no reason to decree it. All the more so since in the extreme case where it would be achieved, the Sages would gain nothing from their enactment—for they have no interest in stoning people for no reason, nor in causing them to violate biblical prohibitions. I was referring mainly to the situation where a person calculates cost-benefit against what the lawgiver revealed to him, as in the athlete analogy. (Of course this comes out joined with your point; I just wanted to sharpen it with an analogy.) In my opinion, here the question is not practically what the person will do, but whether, if he did it, he gained anything thereby. Therefore it does not matter whether it is biblical or rabbinic: in the end, if the law is a foundational law, and you violated it, there is no utility at all in the continuation of your deeds for good or ill, so the utility calculations are emptied of meaning.

6. Regarding Lot’s daughters and Yael (thank you for the correction—I learned in heder… they didn’t invest much in us in history, and add to that Passover eve…).
What I meant was not the prohibition they actually transgressed, but the broader implication of the rule, which is something exceptional, and there one has to use one’s head—like in the example you brought from Shabbat 42 regarding a coal, where there is a difference between the public and an individual. (Of course the Torah will not spell out exceptions for cases of daughter and father or a married woman, because we are not going to rewrite history.) And this is where the role of the individual, over against the many, comes in—to use his head and save the world or the people of Israel. And continuing the athlete example here too: if he indeed transgresses and uses the drug because he understands that if he does not take it, Iran will permanently shut down the sport (and he is indeed convinced of this), then there is definitely room for leniency. Incidentally, that does not mean that if he came in first place he would receive the trophy; presumably not, because in the end he deviated from the rules. But they would not drag him off the podium like a dog; rather, he would receive a commendation from the entire sports federation, and that is enough for the discerning.

Tam, שלום.
In order to continue a discussion in an existing thread, you need to go back to the first message in the thread and click there on “Reply.” When you fill in your response in the window that opens there and click “Respond,” the response will appear at the end of the thread. Opening a new thread each time is very confusing, because one cannot tell what the remarks refer to.
1. Yes. Even an unintentional pursuer or a minor is still a pursuer.
2. I assume the original misleader. It depends on the situation.
4. What one sees in Tosafot are two things: 1. the expectation that a reasonable person would not obey such an instruction. 2. As a result, one cannot say that there is a prohibition here (a de facto recognition of human nature. Incidentally, in my opinion this could also be said regarding Torah prohibitions. In this respect there is no conceptual difference between rabbinic and biblical law). I expanded the second innovation and argued that even those who disagree with Tosafot may perhaps say that there is a de facto recognition of wrongdoing—not by negating the prohibition, but by recognizing that the act is acceptable despite the fact that it involves a prohibition. For that I brought the example of “a transgression for its own sake,” as a borrowed example (I did not mean a full comparison).
Also in the examples you brought, if the assessment is that every reasonable person would do it, there is room to say what I suggested. But here it is even more compelling, because the halakha by its very essence places a person in an unreasonable situation. There it is an accidental constellation. But that is only a side comment.

On note no. 1:
Correct, an unintentional pursuer is also a pursuer, but long live the small difference. For according to your claim one could also expand this so that all truthful witnesses who come to carry out a court ruling would be considered pursuers (for the reason for the killing does not matter; in the end a court ruling is being carried out here according to law).
Regarding note no. 2:
Does the law of pursuer also apply to a person who misled others and can no longer correct it, like the example I brought? Obviously not, for right now he is not pursuing! Therefore, if I do not accept your basic reasoning that a court can cancel its own ruling on the basis of the witnesses’ retraction (I do not accept the reasoning because there is an explicit derivation of “once he has testified,” and it is not reasonable to assume that the derivation accomplishes nothing), then it follows that the witnesses have no power to prevent the court’s ruling. Their transgression they committed through the lie; the result they are carrying out because of their obligation to obey the court’s rulings. Therefore I am not at all sure they are different from any other person who would carry out the court’s ruling, even if it involved an explicit legal mistake, and I do not think he would be seen as a pursuer. (The fact that they know the truth is irrelevant, because in the end the court rendered a ruling and according to it the person is liable to death!)
And by way of example, if the court ruled on the size of an olive-bulk, as is known, then now the olive-bulk is indeed that size—that is, the court, by its ruling, creates reality. What I wanted to discuss was whether they can be required (not morally, of course) to cut off their hand and prevent the ruling by indirect means. I am not at all sure they are obligated.

And regarding note no. 4:
Again, the crux of the disagreement is whether practical calculations cause Hazal to change their restrictions. Presumably yes. But if they did not calculate the practical reality, that has no bearing on the prohibition itself. On the contrary, the prohibition remains in force. You did not address (or I did not understand) what is different about the case of removing bread from the oven and saving one’s property from a fire, as opposed to other rabbinic prohibitions such as the example I brought of moving a stone on Shabbat in exchange for an enormous sum. Do you mean that if every reasonable person would violate the prohibition of muktzeh in exchange for payment, then the prohibition of muktzeh would be considered a declarative prohibition?! (In this situation of monetary temptation.)

(I hope I threaded this correctly.)

1. The court’s ruling was made in error by the judges because of their deception. They have an obligation to prevent this as much as they can.
2. The derivation that one cannot retract testimony applies to the ordinary laws of evidence. But there is also the law of a suspicious case and action not according to the strict law, and this depends on the court’s own understanding. When the court has no clear position, it follows the ordinary rules of evidence. See Rambam at the beginning of ch. 24 of Hil. Sanhedrin regarding monetary law (it is not the same thing, but it is the same logic regarding the relation between the ordinary rules of evidence and a court’s decisions according to its understanding of this particular case).
I think that even a person who misled by mistake is a pursuer, like a minor or an incompetent person who is pursuing. The obligation to correct it is on him.
A court does not create any reality. That is a baseless yeshivish ethos. If a court errs, then it errs, certainly in rulings of prohibition and permission. In monetary matters there are clear parameters, because there the authority concerns the two litigants. But in rulings of prohibition and permission, this is authority over the entire public. This touches somewhat on the mistaken ruling in the mitzvah to obey the words of the Sages at the beginning of Horayot, but this is not the place.
4. I said that it is not different in principle, and in every place where something is placed in the balance that a reasonable person would not withstand, the prohibition can be interpreted as declarative. But I added that the prohibition of poultry with milk is certainly not declarative, because in the normal situation one certainly must obey it. Only in an exceptional situation where it costs you millions of shekels is there room to view the deviation from it as legitimate. I would not define such a prohibition as declarative. But Rashi’s prohibition against saving oneself with another person’s property is declarative, because in the normal case a person does not withstand it and is not required to withstand it. Here one may say that the prohibition itself is declarative.
Incidentally, I do not think as you do that the original enactors thought of practical calculations and defined the prohibition as declarative. This is a sweeping statement of Hazal that any prohibition in such a situation is declarative. After all, the prohibition of removing bread from the oven was not born in the sugya in Shabbat 4a. It is a prohibition enacted previously, and now the question arose what happens in a case where the bread was stuck in the oven and removing it is required to save him from a severe prohibition or from death. The Sages of the present come and declare that in such a situation this is a declarative prohibition. I do not think there is any necessity to tie this to the original enactors. There is a general principle here for all rabbinic enactments.
Well, it seems to me we have exhausted the matter.

A side note—would it be permitted for the condemned person to cut off the hands of false witnesses, or even to kill them?

If someone was born from a conditional divorcee before she violated the condition, is he considered a mamzer?

At the time the act was done, it was apparently done permissibly. Even so, are they considered mamzerim?

I would appreciate elaboration. תודה.

I think so.

A. Is one allowed to bring oneself retroactively into a prohibition (in the case of the woman and the wine)? I once saw a proof that this is permitted (I do not remember from whom), from Menahot 48a: “he redeems them while they are inside, and they automatically become non-sacred.” But it seems to me that on the contrary, the proof from there is that usually it is forbidden, and this is a special rule regarding non-sacred animals in the Temple courtyard, where the problem is the bringing in, not the remaining there; and at the moment of bringing them in they were in fact sacred. For it is strange to say that the Rabbis and Rav Hisda there disagree on a major principle throughout the Torah (unless for the Rabbis the redemption itself is the present bringing of non-sacred animals into the courtyard, and not their prior bringing into the courtyard, and according to all an act in the past is permitted).
And if so, then just like one who throws from a roof and removes the cushions, we have found a solution for exempting produce from tithes with complete permission: let him separate the tithe and eat the ninety, and then annul the tithe by asking a sage, and then separate tithe from it again, etc. Yet no one, to my knowledge, ever happened to write this (and perhaps this has practical implications for conceptualization and possession).

B. Is there an explanation of the distinction between illnesses and coercive situations? The Rambam (and the Or Sameach) there is for me an utterly baffling midrash, and I cannot see even a hairsbreadth of difference. (The Or Sameach’s wording: “From whose agency does his death come if the coercer kills him? From the fact that he does not wish to kill so-and-so. But here the illness that came upon him came not because of any person, only that he can save himself by the blood of so-and-so or by this idolatry. Thus this is considered an absolute preference for his life out of his own will.”)

C. What is the relation between a declarative halakha for exceptional people and a decree that the public cannot uphold?

Yes. I have nothing to elaborate. Mamzer status is not a result of an act that was a transgression at the time, but of intercourse with a married woman. Once she violated the condition, it became clarified retroactively that she had been a married woman, and therefore her children are mamzerim.

A. Nice link. I also agree with your inference. But in my opinion there is still some room to discuss it, because redeeming them in the courtyard turns them into non-sacred animals, and there is room to view that act itself as bringing non-sacred animals into the courtyard, in which case it would be forbidden. That is not so with a woman who violates the condition and drinks wine, for there the drinking of the wine itself is not the prohibition; it only causes a prohibition regarding the earlier acts of intercourse. And perhaps there there would be no prohibition. Perhaps that is what you meant by your distinction.
B. There are definitely several explanations, but this requires a long and subtle discussion, and this is not the place for it. I have a lecture on this in which I dealt, though briefly, with the different explanations. If you want, see here in lecture 37:
https://onedrive.live.com/?authkey=%21AN%5FZQha1QxFiY8s&id=395204EC53F39CE0%21586&cid=395204EC53F39CE0
Incidentally, in lecture 35 there I argued that the dispute between Tosafot and the Ran about the obligation to give one’s life for rabbinic “accessories” depends on the question whether the Sages have the power to obligate people to give their lives for a rabbinic prohibition. In our terms here, I would say that even if they have such power, there could still be only a declarative halakha here.
C. A decree that the public cannot uphold is nullified. A declarative halakha remains fully in force, except that the one who violates it has acted legitimately. This reminds me of a ruling by Aharon Barak about a woman who veered off the road because a cat crossed it, struck a pedestrian on the sidewalk, and killed him. The defense argued that this was the action of a reasonable person, since every reasonable person would do that. Barak wrote that this was an unreasonable instinct of the reasonable person. It seems to me that he meant to say that although every reasonable person would indeed act that way, one cannot determine that such an act is permitted. Therefore it should be seen as a declarative halakha.

A. Yes, that is what I meant in the parenthetical suggestion. Now it seems to me there is something like a proof from the expression “he is bringing in.” It seems to me that the prefix indicating present action appears only before a present-tense verb. And if the non-sacred animals in the courtyard were a matter of the past, they should have said: “he brought non-sacred animals into the courtyard.”
B. The link is different. Were it not for the fact that the internet here is extremely slow right now, I would scan the folders, but at the moment I allow myself to ask for the name of the tractate in which the lectures are found.
C. That is the practical implication, but is there a way to identify which is a declaration (and therefore remains in force) and which is a decree (and therefore is nullified)?
[The oxymoron—“the unreasonable instinct”—stands there and says “interpret me,” and reminds me of an incident that happened and is connected to the post. I first encountered those two adjacent halakhot in the Rambam about illnesses and coercive situations when someone came to me and said he had found in the Rambam a huge contradiction within a single breath.]

B. I fixed the link. Pesachim-doctoral students.
C. It may be that the way to identify them is according to the question what the situation was when the decree was made. A decree that was not accepted by the public is an ex post facto situation. Those who decreed it thought it would be accepted, and it turned out they were wrong. So it is annulled retroactively. But I am talking about a decree where already at the time it was decreed, it was clear that it would not be accepted, because the difficulty is such that it is clear from the outset that people will not uphold it.

I don’t really understand what happened here with the thread, or whether everything here is indeed deterministic. If possible, please delete, etc.

In the name of G’:

B. I devoured the lectures on the matter with great interest. Thank you very much. Truly fascinating as an exposure to Talmudic contents (though I read and my heart protests). You wrote that this is not the place for discussion, so I will only say: may the voice of the post be heard in our land.
C. Somewhat difficult, because the language is initially: “One does not decree a decree upon the public unless most of the public can uphold it.” And there were decrees that were not made from the outset for this reason. This can be reconciled, but one would seemingly enter forced answers.
[A. I erred in what I saw; the Gemara does not say “he is” at all, but “behold.”]

My response:
I assume that the basis of the protest is the consequentialism of the gentleman, which has already come up here in the past. Perhaps the voice of the post will rise again, and then we will revise this chapter and the whole chapter of consequentialism in general (which was already discussed in posts 120 and 122).

Regarding what Moshe G. asked: seemingly this is a solution not only in the case of witnesses who lied, but even of truthful witnesses, and there is not much way to deal with such an act. And it is obvious that if the testimony is true and now he killed or cut off the witnesses’ hand, he has added sin to crime. And it also seems obvious, as the rabbi said, that if he transgressed and cut it off in the case where the witnesses lied, he did not violate any prohibition. The discussion was whether this is incumbent on the witnesses themselves, in order to prevent themselves from causing unnecessary killing. And the sides of the question seem to be, according to the rabbi’s above words, that according to the side that the main transgression was committed by their testimony, and now they are merely carrying out the court’s ruling (bringing the false testimony from potential into actual effect), perhaps they are not obligated to prevent themselves from a prohibition that will take effect retroactively. (Even though the distinction between drinking wine, where retroactively it turns out that her acts of intercourse were acts of promiscuity, is straightforward, as already mentioned here: in drinking the wine there is no prohibition, unlike in murder.) Unless we say, as the rabbi already mentioned, that a court’s ruling is not a determination of reality, and they are carrying out the murder at the moment they execute the court’s ruling. If so, then seemingly it is obvious that they should even have to be killed rather than transgress, by the law of the three cardinal sins.

It seems one can prove from Shabbat 37 that Rabbi Yehuda did this out of a frenzy and lack of control:
“Abaye said to Yosef: what about leaving it [on the fire]? He said to him: but Rav Yehuda used to leave it there and eat. He said to him: Rav Yehuda is no proof, for since he was dangerously ill, it is permitted even on Shabbat itself to do it for him.”
And Rashi שם wrote: “He was prone to be seized by bulmus, and needed to eat sweet and good food.”

The Gemara comes to reject a proof from Rabbi Yehuda, since because he was seized by bulmus, it was permitted even to desecrate Shabbat for him.
Therefore it seems obvious to say, as was mentioned here as one possible understanding of Rabbi Yehuda, that the matter was done out of bulmus and lack of control, and not in a considered manner.

I thought I would restrain myself, but I cannot manage not to recoil. If this whole passage returns here one day, I hope I will be able to become wiser.

True, true—I was indeed caught on this issue of consequentialism (I don’t remember whether under this nickname, but presumably with the same email address. I switched to the strange nickname “G’” when I wrote things I did not want others among my acquaintances who read here to know that this is what I think, unless I am standing over them to correct and clarify, etc.).
I read posts 120 and 122, and I am not sure they exhaust the issue. Post 120 attacks egoistic utilitarianism, and I—as a consequentialist in value—join that attack gladly. Post 122 deals with creating a categorical imperative, whose absence is indeed a regrettable problem, and I would be happy to inject it into the minds of all people, including my own. As it happens, I do not hold by it—not because of any theoretical objection to principles as such (though I can find in myself only one such principle), and all I see in its favor is the anthropological consideration, which is weak to the point of irrelevance. (If Elijah were to come and reveal to me that “morality” commands something, that would not interest me in the slightest.)
In the (provocative and fascinating) posts 252–254 I am still in the middle of completing the reading materials to which you referred there. As for the position itself, I fear I have no new argument to add, even if the feet of the herald should one day stand upon the mountains. I will only say that the examples supposedly intended to make the consequentialist position seem puzzling are, in my eyes, excellent demonstrations of what one definitely ought to do (and one who does not do so is morally deficient, period).

In lecture 37 on healing through transgression mentioned above, there are among other things deontology and a “zero state,” and I look at them (at least in the specific considerations presented there) like a human being looking at chickens. I also see no difference in any sense between the “state” of a man threatened with a gun and a man threatened with a virus (though I was persuaded that this is probably what the Rambam meant). But it is hard for me to engage in dialectic according to deontology, because such intuitions are very faint in me, if they exist at all, and certainly they carry negligible weight when they clash with principles worthy of the name. In this context I would note that the location of a value in the hierarchy is a critical part of identifying the value itself. There is only a tiny difference between someone who does not recognize a certain value (for example, the consequentialist value) and someone who places it too low in the hierarchy.

Seemingly, regarding a fire on Shabbat, one could say that a labor not needed for its own sake is a severe rabbinic prohibition (because there is a tannaitic dispute whether it is biblical or not, and the Rambam too ruled like Rabbi Yehuda), and we have seen other cases where they prohibited a labor not needed for its own sake because it is a severe prohibition—for example, carrying a corpse from a private domain to a public domain so that it not be disgraced, or the prohibition against killing a harmful animal that is not pursuing you but is merely in your path, and so on.

{Quotation from the expanded Peninei Halakha: “The Rishonim wrote that it is more severe than other rabbinic prohibitions, because there is no deficiency in the labor itself, only in the person’s intention, and with a small change in intention it would be biblically prohibited (Tosafot Shabbat 46b, ‘de-khol’; Ramban, Rashba, and Ran 94b; Hayyei Adam 45:1; Sha’ar HaTziyun 278:4, as cited in Orhot Shabbat 30, note 26).”}

Therefore it seems more understandable why specifically here there is a decree regarding a labor not needed for its own sake, and why they did not permit it. Still, it is not entirely clear why a person should have to lose all his property because of a severe rabbinic prohibition, severe as it may be…

This is a discussion that is not essential to the subject of the post, so I only hinted at it. In the book Kovetz al HaRambam he brings the Pnei Yehoshua, who wrote that a labor not needed for its own sake, even according to those who rule like Rabbi Shimon, is forbidden by Torah law, only there is no stoning for it. As with half a measure, for example. But as I said, this is not critical to the discussion.

According to what you wrote, the text should be corrected to Rabbi Yehuda instead of Rav Yehuda.

(In general it would be worthwhile to publish a critical edition of the Babylonian Talmud. I have no problem with the page layout established in Venice or with the Vilna Shas, but the exchanges of the names Rabbah and Rava are beyond count.)

Regarding what you wrote—that a person has to sacrifice all his property rather than violate a rabbinic prohibition—seemingly the Gemara implies that only for idolatry does one have to sacrifice all his property (“with all your might”), but not for other transgressions. Also, in the time of Hazal the main property was property that is not consumed in a fire, such as land, sheep, cattle, produce (which is in the threshing floor and not in the house), and metals like silver and gold. What burned inside the house was not considered sufficiently significant property to desecrate Shabbat for. In ancient times, movable property that a person kept in his house was generally not of great value. What do you think?

“With all your might” indeed was said regarding idolatry, but the law is ruled to apply to all the negative commandments in the Torah. Perhaps they learned a general rule from there (I have not checked now).
Is the house itself not sufficient property? I do not think you are right.

The Maharam Haviv discusses the question and says the following (Tosefet Yom HaKippurim, Yoma 82):

And the verse teaches us that even if a person’s money is dearer to him than his body, he is obligated to spend his money so as not to worship idols; and one to whom his money is dearer than his body—specifically regarding idolatry is he obligated to spend his money, but to fulfill other negative commandments he is not obligated to spend money that is dearer to him than his body.

Regarding the house: in the past houses were not of the quality they are today; they were made of stones and mud. The area was very limited, and real-estate costs were low relative to today because population density was low and infrastructure undeveloped. Note that a sign of wealth in the biblical period was not ownership of houses but of cattle, sheep, camels, slaves, maidservants, donkeys, silver and gold, and of course ownership of land (fields and vineyards). Rich people did not boast of magnificent houses as they do today. In other words, the whole real-estate value of the past was completely different from the reality of today. In addition, it is possible that the house itself would not have been significantly damaged by the fire, because one could return to live in it after clearing away the debris from the fire.

The Maharam Haviv’s words are manifestly unreasonable, and the Rishonim and halakhic decisors do not seem to agree with him.
I have now found:
https://asif.co.il/sourcesheets/35713-2/
But I still need to think about the answer.

As for the fire, it does not seem plausible to me. In any case, it certainly involves a very great loss, and it is difficult to distinguish in halakha between different levels of loss.

It is common to distinguish in halakha in cases of “substantial loss.”

Also, one could answer that a poor person is considered like a dead person, and perhaps there is some similarity between loss of great wealth and danger to life. Also, poverty can drive a person out of his mind and away from his Creator.

Also, I forgot to add that it is possible that the fire Hazal are speaking about here is one that a person cannot extinguish by himself (the common case), and all the concern about extinguishing refers to extinguishing the contents of the house in order to save them in time, but the house itself is doomed anyway, because the person cannot extinguish the fire alone without an available water source.

But here nobody distinguishes between different losses—not the Gemara and not the commentators. On the contrary, for everyone it is obvious that this applies at any cost. And likewise among types of fires.

If it is so obvious that it applies at any cost, even for a rabbinic prohibition, then why is a derivation needed from “with all your might” regarding sacrificing money for idolatry?

That is exactly the question I wrote that one has to think about. In the link I presented earlier there is a discussion of this (I have not yet had time to examine it): https://asif.co.il/sourcesheets/35713-2/

I did not say that about rabbinic law. On the contrary, from the fact that they enacted a special ordinance not to extinguish and not to save, it appears that for a rabbinic prohibition one need not spend all one’s money. Though one can distinguish, since the ordinance is about not saving, but extinguishing perhaps would have been forbidden as a matter of basic law.
As I recall, the halakhic decisors disagree about the rule of spending all one’s money for a rabbinic prohibition. Some tied it to the dispute between the Rambam and the Ramban about “do not stray” (which according to the Rambam is biblical), but in my opinion that is a mistake.

I have now found in Torah Temimah, Devarim 6:5, that he proves from here against the Rishonim who ruled that one must spend all one’s money for any negative prohibition:
24) See Hullin 91a, that there are people whose money is dearer to them than their bodies, and these are people who earn their livelihood honestly and do not stretch out their hands to theft or to what belongs to others. It follows from this that there is a case where one is commanded to surrender his life, namely when one is coerced to transgress idolatry, forbidden sexual relations, or bloodshed; and correspondingly one must conduct oneself in a case of monetary coercion—that in a place where one must surrender his life, one must surrender all his money, for this stands in place of surrendering life. And one must consider what the Rema wrote in Orah Hayyim, sec. 656, in the name of the Rishonim, that in order not to transgress a negative commandment one must give all his money, and he stated this without distinction between idolatry, illicit sexual relations, and bloodshed and other transgressions as in the case of coercion involving life. For according to what is explained from this exposition, coercion involving all one’s money is equivalent to coercion involving life, and if so it should follow that all the details that apply in coercion involving life should apply in coercion involving all a person’s money. And we also find in many places that a person’s money—that is, all his money—is his life, as the Mekhilta says at the end of Beshalah on the verse “to kill me and my livestock with thirst”: they equated their animals to themselves. From here they said: a person’s animal is his life. And see Magen Avraham, sec. 248, s.k. 16, that if he fears that bandits will take his animal or his money and he will have nothing with which to sustain himself, this is like saving life, which overrides Shabbat. So how did the decisors state generally that in order to transgress a negative commandment one must give all his money? In truth, according to this innovation—that expending all one’s money applies only in those matters for which one must surrender one’s life—one can resolve a correct inference: in this section it says “with all your might,” meaning with all your money, whereas later in the section “And it shall come to pass if you surely listen” it says only “with all your heart and with all your soul,” and it does not say “with all your might.” And I think some commentators noted this and struggled with it. But according to what I have written, the matter is simple and clear: since this section before us deals with accepting the yoke of Heaven’s kingship, which concerns the prohibition of idolatry, therefore it says “with all your might,” since for this commandment one is obligated to surrender all his money, as explained. But the section “And it shall come to pass if you surely listen” deals with accepting the yoke of commandments in general, and therefore it does not say there “with all your might,” because in truth one need not disperse all his money for a commandment that is not one of the three severe commandments [unless in a case where the idolater intends to make him violate the religion, and in public, which is like idolatry]. And when it says there “with all your soul,” it does not mean literal self-sacrifice but with all the intention of the heart and soul. Consider this carefully. Yet even with all this, for practical halakha it still requires further consideration.

Can it be said about the following halakhot that they are “declarative”?
A. The prohibition of studying external books—if truth is important to Torah, how could they forbid reading books whose purpose is to clarify the truth?
B. The prohibition of lying in court even when I know that justice is on my side, only the court has no way to verify it.

Good questions. Regarding the prohibition of reading, I definitely think so (as long as these are books that contain arguments and value). I have written this more than once.
As for lying in court, this is a complex and difficult question. It seems to me that Rabbi Sherlo touched on it in one of the early issues of Tzohar (an article on lying. I think he brought a Rosh from Ketubot there on the matter. And one should note Tosafot Gittin 4a, “forged from within”). And much more can be added to his remarks. In this context it is interesting to look at the Rambam at the beginning of ch. 6 of Hil. To’en ve-Nit’an, though the conclusion from there is not simple.

Regarding what you wrote about preventing a prohibition retroactively

And one can likewise discuss (I did not find this explicitly, only by implication) a woman who was divorced conditionally—for example, on condition that she not drink wine for twenty years. After her divorce she went and married another man, and children were born to them. Now, after ten years, she is deliberating whether to drink wine or not. If she drinks wine now, then the first divorce is nullified, and then all her acts of intercourse with the second man are acts of promiscuity, and her children from him are mamzerim. Is she permitted in such a situation to drink the wine? One should know that the condition in itself does not create a prohibition.

It seems to me perhaps possible to bring a proof from the sugya in Gittin 33, that a retroactive prohibition is indeed a prohibition:

“For the sake of repairing the world. What does ‘for the sake of repairing the world’ mean? Rabbi Yohanan said: for the enactment regarding mamzerim. Reish Lakish said: for the enactment regarding agunot. Rabbi Yohanan said: for the enactment regarding mamzerim, for he holds like Rav Nahman, who said that [the cancellation is done] in the presence of two, and two have no publicity, so she did not hear and did not know, and she went and married, and there are mamzerim. Reish Lakish said: for the enactment regarding agunot, for he holds like Rav Sheshet, who said that [the cancellation is done] in the presence of three, and three have publicity, so she hears and knows and does not marry, and therefore the enactment concerns agunot. Our Rabbis taught: If he canceled it, it is canceled—this is the view of Rabbi. Rabban Shimon ben Gamliel says: he cannot cancel it, nor can he add to its conditions, for if so, what power does the court have? And is there such a thing, that by Torah law the bill of divorce is canceled, and yet because of ‘what power does the court have’ we permit a married woman to the world? Yes—whoever betroths does so subject to the will of the Rabbis, and the Rabbis uprooted his betrothal from him. Ravina said to Rav Ashi: that works well if he betrothed with money, but if he betrothed through intercourse, what can be said? The Rabbis rendered his intercourse promiscuous intercourse.”

Regarding “the Rabbis rendered his intercourse promiscuous intercourse,” Rashi there, s.v. “promiscuous intercourse,” explains that even in betrothal through intercourse, the husband makes the betrothal dependent on the will of the Sages.
And in the Shitah Mekubetzet there it says that although a person does not want promiscuous intercourse, here he bears no sin, since from his side he intends his intercourse for the sake of betrothal and wants the betrothal to stand. Rather, since he stipulated that the betrothal be uprooted retroactively if the Sages so desire, it is the Sages who rendered his intercourse retroactively promiscuous when they enacted that the betrothal should be uprooted. And since there is no sin in his hand, there is no reason that he should refrain from making the betrothal subject to the will of the Sages.
Seemingly it follows that the Shitah Mekubetzet was troubled that in the end he does not want his intercourse to be considered promiscuous, and if so, he did not betroth subject to the Sages. Therefore the Shitah Mekubetzet gives its answer. But seemingly one could prove that without this reasoning it would indeed count as a prohibition.

In the book I brought proofs and additional sugyot for this (I recall a dispute of amoraim in Nedarim). From here, in my opinion, there is no proof, because the question there is what a person intends, not whether there is a prohibition. That is not always the same thing (as in the discussion of “You shall not covet”—what people think, as opposed to the halakha itself).

Good evening. Although I am writing late, perhaps my words will still be seen.
Regarding extinguishing a fire on Shabbat, the Gemara (Shabbat 43b–44a) brings a Tosefta:
“One may not save a corpse from a fire. Rabbi Yehuda ben Lakish said: I heard that one may save a corpse from a fire.”
Rabbi Yohanan rules in accordance with Rabbi Yehuda ben Lakish, and the reasoning is: “If you do not permit it to him, he may come to extinguish.” Tosafot there wonder what the difference is between a corpse and property, for with property the concern is exactly the opposite: that if you permit him to save it, he may come to extinguish. They answer that a person is not as distressed over his property as over his dead relative, and if we do not permit him to save his dead relative, he will deliberately extinguish.
According to their answer, it seems that regarding property the expectation is indeed that the person will stand by and watch his house go up in flames.

Regarding the ruling, it seems to me that one should explain Maran according to Rashi and the Rif, since the sugya concludes with the words of Rav Bibi bar Abaye in plain style and not in the form of a question (as opposed to the version Tosafot cite as “some books read”). It also seems from the Rif that the permission is complete, from the fact that he permitted removing the bread with a knife for the need of three meals. And according to the Ran on the Rif, the entire prohibition is only משום weekday-like activity, and the change to removing it with a knife is in the category of “we alter it as much as possible,” but if one cannot alter it, then indeed one does not alter it. Therefore it seems to me that the practical permission is a permission as a matter of law, and even exceptional people are not expected to stand by their bread and wait for stoning. That is how it seems to me from the language of Maran and the Tur.

As for the innovation in the sugya, I find it illuminating in understanding the side that forbids in the words of Rav Bibi.

The rabbi’s interpretation of Rashi seems difficult for three reasons.
A. Seemingly what Rashi gains in the sugya is that it fits the plain wording of the Gemara, where the question is whether one may save himself with another person’s property or whether it is forbidden. According to the rabbi’s interpretation, it turns out that it is obviously permitted, and the question is only whether there is an educational consideration or not, rather than whether it is permitted or forbidden.
B. According to the rabbi, the side that says one may save himself with another person’s property is basically saying there are no property-rights considerations. How is that reasonable? Surely the person whose property was used is harmed by it.
C. In King David’s situation, where there is danger to life, is what he needs to ask really whether there is an educational consideration against harming his fellow’s property?

A. It is forbidden to save oneself. But the prohibition is educational.
B. I did not understand. There are property-rights considerations, but some of them are only on the educational plane.
C. All of this never happened and never existed. It is an aggadah. Beyond that, he asked a halakhic question and received a halakhic answer. He meant to ask whether it is truly permitted or forbidden, and received the educational answer.