Q&A: The Parameters of Positive Commandments Overriding Prohibitions, Saving a Life, and No Prohibition Taking Effect on Top of Another
The Parameters of Positive Commandments Overriding Prohibitions, Saving a Life, and No Prohibition Taking Effect on Top of Another
Question
Good evening!
1. Rabbi Shimon Shkop proved that a positive commandment overriding a prohibition also overrides the very cause of the prohibition (or the forbidden object itself, in Rabbi Baruch Ber’s terminology), from the fact that the Talmud in Yevamot 3b asks that the positive commandment of levirate marriage should come and override the prohibition punishable by karet of marrying one’s wife’s sister. But this is difficult, because in the end, what could override the fact that kiddushin cannot take effect, since that depends on her being a forbidden relative? If so, the act of levirate marriage would not take effect at all. Rabbi Shimon Shkop answers that the positive commandment has the power to override the cause of the prohibition and the status of forbidden relative itself.
But this is difficult for me, because the rule is that one should avoid entering a situation of a positive commandment overriding a prohibition. If so, doesn’t that prove that a positive commandment does not permit the cause of the prohibition?
On the other hand, one can prove that there is a difference between the permission of a positive commandment overriding a prohibition, which actually permits the object itself, from the fact that the child would not be a mamzer, unlike the permission granted for saving a life, where the child would be a mamzer (for example, where intercourse with a forbidden relative is permitted in a case of suffering, according to some medieval authorities).
2. Which permission is stronger? On the one hand, a positive commandment overrides the cause of the prohibition and even permits the status of forbidden relative, while on the other hand saving a life does not permit intercourse with a forbidden relative, yet still overrides a positive commandment?
3. What is the meaning of the rule that no prohibition takes effect on top of another prohibition? Does it mean that there is a prohibition that fails to take effect, or that one is not warned twice? Neither explanation seems very satisfactory…
Thank you very much!
Answer
Whenever one brings proof from the Talmud’s initial assumption, this question always comes up. The answer in such cases is that the conclusion does not disagree with the initial assumption on that particular point (we do not multiply disputes unnecessarily). In our case, the fact that from the standpoint of a positive commandment overriding a prohibition one may not perform levirate marriage without an explicit Torah permission could be due to some side reason, even though a positive commandment does indeed override the cause of the prohibition. Especially if we are talking about entering a situation of a positive commandment overriding a prohibition, one can say that one should not enter it, because if I entered it, then I am not really being “compelled” with respect to the prohibition, and in such a situation it is not overridden in the face of the positive commandment. This is like anyone who puts himself into a situation of coercion, or like the dispute between Rabbi Akiva and Rabbi Eliezer regarding preparations for circumcision: where it could have been done before the Sabbath, they do not override the Sabbath.
As for the permission of saving a life, that is because there the permission is to perform the act of intercourse, but not a permission for kiddushin. That is what is required of me because of saving a life—the intercourse, not the kiddushin. But in levirate marriage, the positive commandment requires kiddushin of me, not only intercourse. Therefore, if we permit it, then the kiddushin also takes effect. So you can see that this is not a matter of stronger or weaker, but of the nature of the permission itself (your second question).
And in truth, it still requires analysis why this is proof that a positive commandment overrides the cause of the prohibition. One could say that it overrides the prohibition itself, and therefore there is no taking effect of kiddushin. But according to my approach here, it works out, because in the initial assumption we see that it really does override the kiddushin itself.
3. Regarding the rule that no prohibition takes effect on top of another prohibition, I have been wondering about that for quite some time. Apparently there is an underlying conception here that prohibitions are not independent labels, but warnings intended to prevent a certain act; and once it is already barred to us, there is no point in barring it again, and the Torah does not do so. But that is indeed somewhat forced.