Q&A: Using Legal Fictions and “Cutting Corners”
Using Legal Fictions and “Cutting Corners”
Question
Hello Rabbi,
From several of your responses I’ve inferred a certain principle of halakhic ruling: laws (it seems to me, probably rabbinic ones) whose rationale has lapsed, but which we cannot formally repeal because there is no majority of the original court, can be treated with a certain amount of “cutting corners within the framework of Jewish law”…
What exactly does that mean? Seemingly, from the moment we accept that it still has legal force, we should discuss it on a formal basis… If there is a distinction that seems valid to us, then we can always permit on that basis; if the distinction is not valid, that should not change just because the rationale of the Jewish law has lapsed…
Does the Rabbi mean that there are things regarding which we would ordinarily be stringent because of the “spirit of the Jewish law,” and in such a case we would not be stringent?
Can the same principle be used regarding a law that still applies (though less so) in a reality where the concern no longer really exists? (This year in our yeshiva there were arguments about eating before the reading of the Megillah… what exactly is included in the “great discomfort” that the Mishnah Berurah permits… Is it that since in a yeshiva there is no real concern that because of eating they will forget to read the Megillah, one can “cut corners” and rely on other halakhic decisors, even though they are not usually their rabbis?)
Answer
Not all binding laws have the same status. For example, regarding legal fictions, one must distinguish between laws that have a clear rationale and formal laws. One never uses a legal fiction to get around a consequential or moral law. You do not kill by legal fiction, but one may use legal fictions regarding the firstborn or Sabbath observance (at least when needed).
It should be remembered that a legal fiction means acting within the bounds of what is technically permitted, but against the spirit of the matter. And if the matter has no such spirit, then there is room to use a legal fiction. The same applies to “cutting corners.” “Cutting corners” means relying on lenient opinions or operating at the edge of what is permitted.
There is room to use this regarding eating before the reading of the Megillah, although there are decrees where it is stated explicitly that one may not deviate (such as reading by candlelight, which is forbidden even at a height of ten cubits. But with someone watching, it is permitted). I would be lenient wherever it was not explicitly stated that it is included in the decree.