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Q&A: Majority and Not Particular

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Majority and Not Particular

Question

It is known that an interposition covering the majority of the body, where one is particular about it, is a Torah-level interposition; and if the interposition covers the majority but one is not particular about it, it is rabbinic, as a decree because of the case of majority and particular. My question is: “being particular” means that the interposition bothers him. Now, if a person has an interposition on most of his body, even if he is not particular about the dirt as dirt on the body, still this dirt does bother him, since the immersion is invalid on the rabbinic level. And that is a halakhic kind of particularity, so it should be Torah-level.
(The lecture yesterday was absolutely fascinating, really sweeter than honey—thank you very much!) 

Answer

Thank you very much.
Your question reminds me of two famous difficulties. One is in Tosafot and Ran on Bava Metzia 30a, regarding the red heifer or the heifer whose neck is broken: if a yoke was placed on it against his will, it is not disqualified. Those medieval authorities ask: but the moment it becomes disqualified, that is certainly against his will, since this is a huge financial loss. If so, a heifer should never be disqualified.

Similarly, they asked about the Arukh, who wrote that an inevitable result that one does not want is permitted. They objected: in every such case, one certainly does not want to be punished by stoning, so every inevitable result should always be permitted.

Tosafot there wrote that whether one wants it is determined by a consideration beyond the consequences of that very desirability itself. (The Ran there wrote differently, and one could analyze this at great length.) It seems to me that the underlying logic here is the principle of Rabbi Shimon Shkop, phrased in the yeshivot like this: any legal effect such that, if it takes effect, it thereby would not take effect—then it does not take effect.
And the application here is clear, though one could certainly analyze it further.

Discussion on Answer

Joshua (2020-03-31)

[It seems that lately I’m here in the role of a golem who types and pastes. Rabbi Ovadia also answers this way, using those same two examples. But he doesn’t come down to Rabbi Shimon’s reasoning; rather, to the “tips theory” (as in “Two Carts” when this topic was discussed, if I remember correctly). Taharat HaBayit, vol. 3, p. 8: “In my humble opinion, there is no difficulty at all, because majority-and-particular is Torah-level only when one is particular about it in itself, wanting to remove it because of its unpleasantness and the like. But if the particularity is only because of a prohibition, it is not considered particularity. And similarly we find in the law of an inevitable result that one does not want, which is permitted by Torah law […] And so too I wrote in Yabia Omer responsa (vol. 4, Orach Chayim, sec. 34, para. 35), and I brought proof for this from Tosafot (Bava Metzia 30a) […]. See there.”]

A. You wrote, “And the application here is clear, though one could analyze it further.” If we understand the red heifer and inevitable result cases in terms of Rabbi Shimon, then what is the application to majority-and-particular? After all, being particular because of a rabbinic decree does not cancel itself out. But not wanting it definitely does cancel itself out.

B. Tosafot and the Arukh, I think, can be understood—and therefore it seems preferable to understand them—without Rabbi Shimon’s principle. Something like the new answer from a few years ago in the pamphlet on migo. The only globally consistent halakhic ruling is to invalidate / prohibit in such cases, because if you permit it, then in fact he does want it, and that clashes with the existing prohibition. So here they legislate a new prohibition (just as every new prohibition in the world takes effect on something that had previously been permitted. It’s somewhat similar to a rabbinic decree within Torah law. And it branches out from the original prohibition, like a half-measure).
Rabbi Shimon’s principle fits cases where there is no issue of conflict, like granting something to a slave on condition that his master has no rights to it—does his condition help? There is no halakhic problem with the acquisition not taking effect at all, and Rabbi Shimon explains the view of the Rabbis that the slave’s acquisition does take effect and the master’s acquisition does not (and not that the slave also did not acquire).

C. Maybe you could give me more of a sense of Rabbi Shimon’s principle itself. I have the feeling, as usual, that this was discussed in “Two Carts” or somewhere else, but my memory is already, oy oy oy.
I’m writing down two troubling intuitions. Neither is really direct, but I’m putting the inner vagueness itself on the table in hopes of clarity.

C.1) In the gift to the slave there are four “steps”: (1) acquisition by the slave. (2) acquisition by the master. (3) no acquisition by the slave. (4) no acquisition by the master. Rabbi Shimon (according to the Rabbis) cancels steps 2-3-4 because step 2 undermines itself. But 1-2-3 also undermines itself. How do we decide that specifically 2-3-4 is what gets canceled and not 1-2-3? To say that step 2 is invalid (because of the principle), and therefore it cannot even undermine 1, is a bit strange, because step 2 is only theoretical and does not really need to take effect in order to undermine 1.

C.2) If legal effects are objects and the mechanics of legal effects are quasi-physical (rather than like logical implication), then seemingly Rabbi Shimon’s reasoning in a case like the slave’s gift does not make much sense (and I would have expected all the steps to take effect, so neither the slave nor the master acquires). One can create a mechanics that takes this into account too, but why should things work that way? And why does it seem to me more plausible that the mechanics are physical, albeit in zero time? Because of Maimonides’ wonderful point. A prohibition of eating that entails a prohibition of benefit is not an “additional prohibition” on top of the eating prohibition, and that is easier to understand in physical mechanics. In “logical” mechanics I see no reason that this should not count as an additional prohibition (that is, I don’t see the logic of the rationale behind the rule of an additional prohibition).
[There are 3 sub-questions here. Is there a connection between the principle and my vague formulation about the mechanics of legal effects? And is there a connection between that point and the above mechanics? And are the mechanics in the principle and in that point at odds with one another?]

Many thanks

Joshua (2020-04-01)

[In question A above I was too brief. I mean: true, if being particular because of a rabbinic decree turns it into a Torah-level interposition, then there is no longer any need for being particular because of a rabbinic decree—but the decree still applies and there is particularity because of it; it’s just that there is now also an additional reason for being particular because of the Torah-level issue.]

Michi (2020-04-01)

A. Rabbi Shimon’s reasoning is exactly the “tips theory.” Why does a legal effect that cuts itself off not take effect? Because self-reference is illegitimate. In any case, even if it is not Rabbi Shimon, that is what I meant here.
B. I’m not sure I understood your distinction. His reasoning was said regarding a bill of divorce given on condition that she not marry a certain man, and she married him. There there is an internal contradiction.
In your examples too there is a conflict, but a passive one (that is, toward leniency and not stringency). Prohibiting the animal even though one does not want it is a prohibition placed on an animal that was permitted.
C. We discussed Rabbi Shimon at length in book 5 of Talmudic Logic. I argued there that there are two assumptions in his words, not one as people always think. He assumes that the causal-logical chain behaves like a temporal chain (that is, this is not “it became clarified retroactively,” but rather from now onward retroactively), and also that any legal effect that cancels itself does not take effect. I showed there that there is at least one conflict that is resolved entirely without the second assumption, only with the first. It’s too much to elaborate here.
1. Rabbi Shimon’s rule says that when you reach some step that cancels itself, it does not take effect, and that’s it. Step 2 is first in line, so it does not take effect. The rest follow from that (you do not cancel a whole chain, only a single step). Of course this is logical priority, not chronological priority, but that makes no difference.
2. I don’t see the difference between mechanics that deal with objects and mechanics that deal with legal status.
As for Maimonides’ wonderful point, I don’t see the connection. There we are talking about a prohibition and not necessarily a legal effect. Even in meat and milk, which is prohibited for benefit, there is one legal effect, but it has several implications (eating and benefit). On the contrary—that is exactly his point: since it is one legal effect, one prohibition does not take effect on top of another. By the way, this itself is not accepted by Tosafot in Pesachim, who understand Rabbi Abbahu differently from Maimonides. According to Tosafot, the prohibition of benefit branches out from the eating prohibition, whereas for Maimonides they are two examples of one legal effect of prohibition.
It’s hard to elaborate on all this here.

Joshua (2020-04-01)

Thank you very much! I haven’t read book 5 of Talmudic Logic, and I now understand that I’ve missed a lot. An attempt to order it from Amazon failed (it says they don’t ship to Israel. Strange). Is there any other way to get it besides shipping from abroad? Do they actually ship to Israel?

1. In the case of majority and not particular there is no internal contradiction, only the “tips theory” (the level of the law does not affect the level of the law itself). That is, the connection between interposition and Rabbi Shimon’s principle is only if one understands him the way you wrote, in terms of the tips theory? I didn’t understand Rabbi Shimon that way, but now I do 🙂

2. Why, in Maimonides, is this not two legal effects, one drawn after the other (benefit drawn after eating, just as the master’s acquisition is drawn after the slave’s acquisition)? It sounds like you wrote about this somewhere, and I’d be very happy for a reference.

[3. I thought that the mechanics of objects are not supposed to depend on the continuation of the chain. I need to think about that more.]

4. [Bothering you a bit more, if and only if that’s okay. By the term “conflict” I meant conflict with an existing prohibition. A case of a prohibition on a permitted cow is not problematic, because one can generate a new prohibition. Unlike permitting a prohibited cow, which conflicts with an existing prohibition. Also in the case of the divorce, you can’t solve it by means of a new prohibition, because the woman will always be permitted either to the original husband or to the new so-and-so (so the new prohibition cannot branch out from the original prohibition of a married woman that took effect through her being designated to one man). Therefore even “according to me” you need the principle.
In the example I remembered about the slave’s gift (here
https://www.hebrewbooks.org/pdfpager.aspx?req=40915&st=&pgnum=137
section 21), there is no connection to creating a new prohibition, and therefore “according to me” you need the principle.]

Joshua (2020-04-01)

Question 1 in my last message is completely unnecessary, but you can’t edit messages here

Michi (2020-04-01)

2. In Maimonides, Prohibitions of Forbidden Foods 8, it is explained that Rabbi Abbahu’s view—that every prohibition of eating also includes a prohibition of benefit—is because eating is just a common example of benefit. Essentially there is one prohibition of benefit, of which eating is one example. Therefore eating does not generate the prohibition of benefit; rather, both are rooted in one legal effect of prohibition. I wrote about this in an article on leaven on Passover and historical prohibitions.
4. I understand. My only point was that creating a new prohibition is also a conflict. You create a prohibition where there is none. That is like canceling a prohibition where one exists. So here and there alike this is a conflict, except that creating a new prohibition is a conflict toward leniency (passive) and not toward stringency (active). But on the logical level I’m not sure there is a difference.

Michi (2020-04-01)

The book is only available through Amazon. I don’t know what the shipping situation is right now.

Joshua (2020-04-01)

2. Thanks. I just found the article you referred me to (“The Wine Belongs to Its Master + Thanks to the One Who Pours It”), and from there it’s understandable.

Since the book’s footsteps are delaying, I’ll ask for clarifications here also on the part I omitted earlier.
Regarding the slave’s gift, you wrote that “step 2 is first in line, and therefore it does not take effect.” The question was: why isn’t step 1 first in line, since it gets canceled by step 3, and therefore it should be the one that does not take effect? From Rabbi Shimon’s words in the link I cited earlier (right at the beginning of section 21), it seems to me that one really could cancel either step 1 or step 2; and we decide to cancel 2 because in any event there is no acquisition by the master, and therefore in such a case the slave acquires an independent legal hand, which cancels the dependency of 1 on 2, and consequently 1 does not cut itself off and so it takes effect.
By the way, just for the joy of scribbling, it still needs clarification how the question is interesting at all, since it leads to obtaining the book, and that cancels the question, and this requires further study.

Michi (2020-04-01)

What I wrote is that the matter depends on the logical order. When you perform step 1, at that stage it does not cancel itself. Only when stage 2 arrives does it cancel 1, and thereby itself as well. It follows that carrying out step 2 cancels itself, and therefore in such a case what gets canceled is step 2.

Joshua (2020-04-01)

I didn’t understand. If I still don’t understand after the book, I’ll come back again.

Michi (2020-04-01)

I’ll try again. The rule is that when you arrive at some step such that the very doing of it cancels it, then it is canceled. When you reached step 1, that did not happen. But at step 2 it did happen, and therefore it is step 2 that gets canceled.
And it doesn’t matter that in order to cancel step 2, along the way we canceled step 1. Bottom line: step 2 is a step that cancels itself, and therefore it does not take effect.

Joshua (2020-04-01)

What does it mean that the very doing of it cancels it? Step 2 cancels itself only by means of step 4, just as step 1 cancels itself by means of step 3. Am I missing an amazingly simple point?

Joshua (2020-04-01)

Ah. I understand. Thanks. There really are no “steps” 3-4. Step 2 is the first thing that goes backward and cancels 1.

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