Pesachim Perek 2 – 25a-25b Medical Use of Issurim

Last week, we examined the sugya in Sanhedrin which forms the basis for the rules of pikuach nefesh in relation to issurim. There, the danger originated in a hostile person. The gemara, as we saw, distinguished between his deliberate intention to cause a Jew specifically to transgress the law of God, and a case where his motivation is his own benefit (hana'at atzman). Coming back to Pesachim, we have an identical halakhic attitude towards a case where the mortal danger is rooted in disease rather than in a personal threat. In this case, however, there can be no possibility that the threat is a deliberate attempt to cause a transgression. The Ramban therefore defines all cases of illness as cases of hana'at atzman. Since our gemara states that one cannot utilize an asheira to effect a cure, even in cases of pikuach nefesh, the Ramban deduces that hana'at atzman is not a reason to suspend the rule of yeihareg ve'al ya'avor in cases of the three cardinal sins. The efficacy of hana'at atzman is limited to cases of yeihareg ve'al ya'avor based on "parhesia" or "sha'at hashmad."

A. The Ran on the Ba'al Hamaor

The Ba'al Hamaor in Sanhedrin, however, had argued that hana'at atzman suspends yeihareg ve'al ya'avor even in cases of idolatry and arayot. The Ramban cites our case, as well as the one in Sanhedrin where a man is believed to face death unless he is able to satisfy a prohibited sexual lust, to disprove the Ba'al Hamaor. Since both cases are cited by the Ba'al Hamaor himself to prove another point, it is clear that he understood the principle of hana'at atzman differently. Our first task is to try and understand why medical use of something prohibited under the category of idolatry (asheira) or arayot is not considered to be hana'at atzman, according to the Ba'al Hamaor.

The Ran (p. 6a, on the Rif, s.v. "vekashe") defends the Ba'al Hamaor. Since the words of the Ran are not completely clear, I shall quote them so that we can clarify the meaning of his answer together.

These questions which were posed to the Ba'al Hamaor... can be resolved, for the statement that "hana'at atzman is (not included in the obligation of yeihareg ve'al ya'avor) applies to the case of Ester, where she acquiesced to arayot, but not for the sake of arayot ("machmat arayot"). But these other (medical) cases cited are not like that; rather they wish to benefit ("leihanot") from the very thing that the Torah prohibited because of the hana'a (inherent) in it, which is the essence of the prohibition. For instance, in the case of using asheira as a cure, the Torah stated that one should not have hana'a from asheira, and he wants it in order to have hana'a from it. Similarly, the one who was love-sick, the Torah said that one should not have hana'a from erva, and he desires erva because of the hana'a (inherent) in it. Ester, however, did not acquiesce to arayot for the sake of the erva itself, but in order to saved from death.

We can see immediately one point the Ran is making. He claims that when the Torah prohibited arayot and idolatry, the prohibition specifically was directed against hana'a from them. In the case of asheira, this is obvious, as it is an issur hana'a; in the case of arayot, where the prohibition is the act of sexual relations, the Ran is nonetheless suggesting that the reason for the prohibition, or the object of the Torah's negation, is the hana'a of the act. The Ran then argues that if the object of one's actions is to obtain prohibited hana'a, it is forbidden even where pikuach nefesh has forced me to desire that hana'a; however, if the object of the act was not to obtain prohibited hana'a but only to avoid an external threat, this is permitted.

What is the logic behind this distinction? In order for this explanation to be acceptable, it must be based on the basic logic of the Ba'al Hamaor. As we saw last week, the application of the category of hana'at atzman to yeihareg ve'al ya'avor assumes that the obligation of yeihareg ve'al ya'avor is based on kiddush HaShem. So, the Ran's explanation must be directed to show that a desire to obtain prohibited hana'a constitutes chillul HaShem, whereas the desire to avoid the threat of Achashverosh is not.

I think the explanation is as follows. In terms of the transgression of arayot itself, there is no difference what the motivation of the transgressor is. Since there is intention to commit the transgression (what the Ran calls acquiescence - "mitratze"), this constitutes a violation of the prohibition. However, the Ba'al Hamaor contends that the prohibition itself is suspended by pikuach nefesh, even in the case of the cardinal sins. The only thing which warrants not committing transgressing is kiddush HaShem. The Ran derives from the answer of the gemara in Sanhedrin, that hana'at atzman obviates the necessity of yeihareg ve'al ya'avor, that kiddush HaShem depends not on the commission of the transgression itself, but on the attending circumstances. A chillul HaShem is created when the act of transgression has been defined as a direct rejection of God's will. There are two DIFFERENT cases where this obtains:

1 - where the hostile agent has so defined it;

2 - where the object of the act is the opposite of the value scale of the Torah.

The Ran is claiming that when the Torah prohibited asheira and arayot, it was expressing a negative value judgment about them. The fact that the acts of benefiting from asheira and having sexual relations with an erva are prohibited indicates that they are negative objects. They are meant to be rejected. Choosing to have hana'a from them because you think that they can offer something positive to you, therefore, is an act of embracing and espousing that which the Torah has rejected. This constitutes a chillul HaShem!

The Ran therefore distinguishes between Ester, who despite her willingness to submit to Achashverosh, has not done so out of a positive evaluation of sexual relations. The sick individuals in our two cases, on the other hand, are using prohibited objects because of a perceived positive value inherent in them. This is the chillul HaShem which is prohibited even at the cost of one's life.

B. An Alternative Explanation

I would like to suggest another solution to the problem facing the opinion of the Ba'al Hamaor, one suggested by a midrash cited by the Ramban (though obviously the Ramban himself did not understand the midrash in this manner).

One may be healed through all means, except idolatry, arayot, and bloodshed.... How so? If a Jew is sick, and he is told to go to a certain idol and you will be healed, he may not go... and if he is told to engage in arayot.... for one who touches a woman who is not his brings death, as is written, "for many casualties has she felled." Since it has all these qualities, how can it grant life to the ill? Therefore, one may not be healed with it. (Midrash Raba, quoted by the Ramban, Milchamot, Sanhedrin 75b)

The midrash is saying that aside from being prohibited, the three cardinal sins are "deadly;" they are the opposite of life and healing, and therefore one may not be healed through them. This can be understood as a special problem in the medical use of the three sins. Here the problem is not only chillul HaShem because of the transgression. The medical use of these sins in order to grant life is the opposite of the Torah understanding of them - they represent death. The use of them is prohibited specifically BECAUSE they will save your life, since that kind of life is defined by the Torah as death. In such a case, the logic of hana'at atzman is irrelevant.

C. The Rambam

The Rambam, as we saw last week, agrees with the Ba'al Hamaor in the classification of the three cardinal sins under the category of kiddush HaShem. However, he does not draw the conclusion that hana'at Atzman will neutralize the obligation of yeihareg ve'al ya'avor.The one halakha that we saw in the Rambam that did appear to be based on his classification of all cases of yeihareg ve'al ya'avor under kiddush HaShem was his ruling (5,4) that one who transgresses when he should have dies does not receive the punishment appropriate to the specific sin he committed but has only transgressed the dual mitzvot of kiddush and chillul HaShem. Concerning medical use of issurim, the Rambam writes the following (5,6):

The same (rules) that apply to duress apply to sickness. How so? If one falls ill and is dying, and the doctors say that his cure is one of the issurim of the Torah, it should be done. One may be treated with all the issurim of the Torah where there is (mortal) danger, except for idolatry, arayot, and bloodshed, in which case even if there is mortal danger one may not be cured through them. And if he transgressed and was cured with them, THE COURT PUNISHES HIM WITH THE APPROPRIATE PUNISHMENT. 

While some commentators suggest that the meaning of the phrase "the appropriate punishment" means a punishment that the court will agree on rather than the Torah mandated punishment for the specific transgression he committed, this is not the most straightforward understanding of this text, especially when compared to the Rambam's statement just one halakha earlier that in cases of duress one does not punish him. It appears that the Rambam is distinguishing in respect to this particular point, the application of the specific punishment for the transgression, between duress (external threat of death) and illness.

The explanation of the Ran for the Ba'al Hamaor can be applied here as well, though not as easily. The Torah has specifically declared these things to be "bad," negative. Adopting them as a cure is adopting a position the opposite of the Torah's in regard to them. This negative value of the Torah is part and parcel of the specific prohibition itself. Therefore, once I know that the Torah PROHIBITS their use even in cases of pikuach nefesh (which is derived from the laws of kiddush HaShem), I understand the original prohibition to be the VALUE JUDGMENT that they are to be rejected even in cases of pikuach nefesh. The Rambam then concludes that the "appropriate" punishment is warranted for directly contravening the Torah value judgment of these sins, even if the act of transgression was under duress.

D. Use of Other Issurim Where There Is No Danger of Death

The gemara concludes with a story of Ravina who applied a salve to his daughter made from "orla" olives. The gemara points out that this was not a life-threatening situation, so even though the prohibition is a regular one, there should not have been a suspension of the prohibition. The second answer of the gemara is that this use of olives is "shelo kederekh hana'a."

We saw (24b) that shelo kederekh hana'a is not subject to malkot. The usual explanation of these two gemarot is that there is a rabbinic prohibition shelo kederekh, which is suspended even in cases of non-life-threatening illness. In other words, the absence of malkot indicates that there is no Torah prohibition; the fact that the gemara on 24b states ONLY that there is no malkot but does not write that it is permitted indicates that there is a rabbinic prohibition. The gemara on 25b then states that this rabbinic prohibition is canceled in cases of illness. (See, for instance, R. David, s.v. "midi"; Ran [Rif], s.v. "mar.")

This last leniency is not to assumed as a matter of course. Even though the prohibition is rabbinic, the rule that prohibitions are not suspended for less than mortal danger should still apply. The usual kind of rabbinic prohibition, for instance chicken-in-milk, or eating on a Tisha B'av, would not be suspended for a minor disorder. The implication of this gemara is that shelo kederekh is a lesser level of issur than a regular rabbinic enactment.

The Raavia (quoted by the Mordechai) is the only Rishon to hold that shelo kederekh is permitted even mid'rabbanan. Accordingly, our gemara is not introducing a new "heter" for sickness, but merely applying the distinction of the gemara on 24b. As we saw, nearly all other Rishonim disagree.

Various achronim have discussed the possibility that the prohibition might be d'oraita, with only malkot being excluded. We shall concentrate on examining this possibility in connection with the Rambam.

As we saw, the Rambam quotes the rule of shelo kederekh in Hilkhot Maakhalot Assurot (14,10-11) only for cases of eating. Reading the examples he brings, we see that they are all cases where someone ate an issur but did not receive taste-hana'a. Based on this, in the shiur on 24b, I defined the Rambam's opinion as restricting the malkot for AKHILA to where there is HANA'AT AKHILA, meaning pleasant taste, rather than other hana'ot, including nutritional hana'a. The Rambam does not cite a case of hana'a shelo kederekh (other than eating) at all. It would appear that he is ruling like the first "lishna" of the gemara on 24b.

However, the Rambam does quote she-lo kederekh hana'a - in Hilkhot Yesodei HaTorah:

When it is true that one may not be healed using other issurim unless it is a case of mortal danger - when it is kederekh hana'atan, such as feeding the patient insects or chametz on Pesach or feeding him on Yom Kippur. However, shelo kederekh hana'atan, such as making a compress or a dressing with chametz or orla, or if we give him a drink that has bitter flavor mixed in with issurim, so that there is no taste-hana'a - this is permitted, even if there is no danger to life. (5,8)

Here the Rambam cites both the case of bad-tasting food (which was the case in Maakhalot Assurot), as well as the new case of a salve or dressing. Why did the Rambam not quote the latter in Maakhalot Assurot?

You might answer that there is no "nafka mina" other than in cases of illness, which is the topic of Yesodei HaTorah. According to the Rambam, all hana'a other than eating, even kederekh, is not subject to malkot. If the person is healthy, it is prohibited (without malkot) even shelo kederekh. Hence, there is no practical reason to mention the special status of shelo kederekh other than in the context of illness.

I find this difficult. The Rambam is generally very structured in his approach. If hana'a kederekh is a TORAH prohibition (without malkot), and shelo kederekh is only a rabbinic prohibition, the Rambam should have cited it in Maakhalot Assurot. The Rambam always distinguishes between Torah and rabbinic issurim, even without citing any "nafka mina." Had the absence of the case of an orla-salve been merely one of an EXAMPLE to the rule of shelo kederekh, this answer would perhaps have been acceptable. But since we have already seen that the rule quoted by the Rambam in Maakhalot Assurot is about the necessity for taste-hana'a in akhila issurim (rather than hana'a being kederekh in general), the case of orla salve is a new PRINCIPLE. There are two rules (parallel to the two "lishonot" in the gemara on 24b): 1) That hana'at akhila is only good taste; 2) That all hana'ot must be the standard ones associated with that food. The second principle is ignored in Maakhalot Assurot.

The alternative is to conclude that the Rambam maintains that other hana'ot, shelo kederekh hana'a, is a Torah prohibition, and that is the reason he does not cite the rule in Maakhalot Assurot. Both kederekh and shelo kederekh are Torah prohibitions without malkot. The question then is, why is the latter permitted in cases of non-mortal illness?

It is possible to claim that cure is not considered to be hana'a at all. Since we are speaking only of issurim which are formulated with an akhila verb in the Torah, and hana'a is prohibited by expansion according to the principle of R. Abahu (as understood by the Rambam, see the second and third shiur in this perek), the hana'a must be akin to eating. The hana'a of eating is taste. Other hana'ot are extensions of the enjoyment of taste. Each object has one or more hana'ot associated with it, similar to taste for all foods. But medicine is never the associated hana'a of an object. We do not consider the prime inherentof any food to be medicinal. If you remember, we explained the Rambam's opinion concerning other hana'ot as being based on "issur cheftza." The Torah indeed prohibited only eating, but in so doing defined the object as one of issur, from which we automatically know that it is wrong to have other hana'ot. This is the source of the requirement that the other hana'a be "kederekh," meaning it be a hana'a that is considered to be the prime method of extracting hana'a from the object. If the Torah had written that to benefit is prohibited (as is the case in basar b'chalav and kilayim), then that issur gavra would include medicine as well. But since there is no issur gavra to have hana'a, but it is only a logical deduction from the status of the food as issur cheftza, the particular hana'a must be inherent in the STATUS of the food. Medicine is perhaps never considered to be the inherent hana'a of any food. Hence, there is no prohibition whatsoever, since one is neither eating (meaning having taste-hana'a), nor exploiting the inherent hana'a-purpose of the object.

In other words, this is not a case of a (rabbinic) prohibition being suspended by a greater need (the cure of illness), but one where the circumstances (illness) are such that there is no prohibition at all.

I freely admit that this position is not totally clear or persuasive. It is a question of balancing the various problems in the Rambam. We may conclude that the question is not completely resolved.

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Next week: Hana'a haba'a l'adam ba'al korcho

Gemara, 25b, "Itmar" to the third line on 26a "... likula lo".

This sugya is notoriously complicated. Before we get to the machloket Rishonim, the gemara itself consists of two lishonot for two Amorayim (Abaye and Rava) concerning two Tanaim (R. Shimon and R. Yehuda). Needless to say, there are disagreements in the Rishonim as well. I recommend you keep paper and pencil (remember them - from before the PC!) handy to list the different possibilities that unfold.

Shabbat 29b "Reish knishta deBatzra..."

Tosafot

R. David, the whole sugya.

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