The Personal Transformation of a Nazir
Several gemaras reinforce a fundamental difference between a neder and a shevu’a. (See for example Nedarim 2b and Nedarim 13b). Both belong to the general category of hafla'ah, empowering a person to create halakhic change through verbal declaration; while a neder alters the halakhic status of a particular item (issur cheftza), a shevu’a, at most, creates a personal obligation to execute or avoid certain actions (issur gavra).
To which category does nezirut belong? On the surface, it resembles a shevu’a, since a vow of nezirut bans three distinct activities – drinking wine, contacting dead bodies, and shaving body hair. There are several gemaras, however, which emphasize similarities to a neder. A nazir effectively bans all wine from his own benefit and bans all dead bodies from contact, and perhaps he also bans his body from the benefits of hair removal.
An interesting comment of the Maharik, (1:53) which is echoed in earlier Rishonim and amplified in many later opinions, asserts a novel approach to nazir. By adopting the nazir experience, a nazir does not address select actions, nor does he alter the status of particular items. Instead, he adopts the personal status of a nazir and transforms his own identity. Once he redefines his own halakhic status, he is now regulated by various halakhot, in the same manner that a Kohen (who was born as such) is regulated by specific halakhot. Some actually compare this transition to giyur, conversion to Judaism, to highlight the capacity to initiate this change (as opposed to the inability to initiate the status of Kohen). When a person converts, he does not directly adopt specific mitzvot. Instead, he accepts the package a Judaism and performs conversions rituals, at which point Halakha imposes newfound regulations. This idea is alluded to by the Rosh (Nedarim 2b), as well as the Ramban (in his comments to Nazir 2b). It is explicitly articulated by a little known talmid of the Ramban, R. Natan bar Yosef, in his comments to Nedarim (17a), as cited in the Shita Mekubezet.
There are multiple applications of this issue, and this shiur will merely introduce some of the more primary ones. Each issue must be more fully explored to appreciate its levels of nuance.
One issue that the Maharik immediately raises is the status of “nazir wine,” and particularly the ability to employ this wine as a template to create further neder-based prohibitions. One technique for creating a neder is the process of hatfasa - associating an item with a previously prohibited item, as in, “X should be forbidden to me in the same way that Y is forbidden to me.” This “transference” coveys the issur from one item to the other. The prohibition of the base item must be the product of a hafla'ah declaration, rather than an inborn prohibition. For example, a korban or a previously neder-banned item can be a base for hatfasa (davar ha-nadur), whereas a neveila cannot, since its prohibition is unrelated to hafla'ah (davar ha-asur). Can a nazir employ hatfasa in order to transfer the status from his wine to a different object, and thereby prohibit it? The Maharit assumes that he cannot, since his nazir declaration did not directly trigger the prohibition upon wine. His nazir designation directly converted his personal status and consequently and indirectly became prohibited.
Perhaps the most obvious and broader manifestation of the Maharik's theory is the interesting position of the Rabbanan cited in the mishna in Nazir (3b) about a person who adopts a contoured version of nezirut by stipulating that he only bans wine products. Despite this stipulation, he converts into a complete nazir. This is a surprising discrepancy between the actual declaration and the result – one that is typically unacceptable. The result of a neder or a shevu’a is tightly bound to the original intent and verbal articulation of the author of the hafla'ah. The position of the Rabbanan in this case may indicate that a nazir does not directly ban the constituent prohibitions, but merely transforms himself into a “shem nazir” (identity of a nazir), and the Torah mandates various halakhot accordingly. By embracing even one aspect of a nazir, he has bought in to the institution, and all of its halakhot therefore apply.
Analogous logic may also explain the applicability of an interesting principle to nazir – matneh al ma she-katuv ba-Torah, that a person may not stipulate a condition that counters the Torah's halakhic guidelines. This application was discussed in a previous shiur. As we noted, it possibly reflects a novel way to understand the principle of matneh al ma she-katuv ba-Torah.
Tosafot in Ketuvot articulate a theory that a person may not stipulate an anti-halakhic condition, because halakhic packages are preset and inflexible. A person cannot marry while stipulating an exemption from marital responsibilities, because Halakha does not recognize this form of marriage – ein ishut la-chatza'in. This principle does not disqualify anti-halakhic conditions; it merely asserts that halakhic kiddushin is an all-or-nothing proposition. Tosafot explain the inability to adopt nezirut conditioned on permissibility of wine in a similar fashion. The guidelines of a nazir are inseparable; a nazir without a wine prohibition is partial nezirut, and ein nezirut la-chatza'in. Conceivably, if a nazir directly creates the respective issurim, he may be able to craft a personalized and partial version. Clearly, however, if he merely buys into the prospect of nezirut and the Torah imposes the package of halakhot, he cannot separate the various elements.
This comparison between nezirut and kiddushin is striking. A husband does not directly obligate himself in various marital responsibilities; he merely marries, and by redefining himself as a husband, he is obligated by Halakha to fulfill the various marital components. By analogy, a nazir does not directly adopt the various rules of a nazir, but merely defines himself as a nazir, and the Torah then imposes the various laws of nezirut.
A third relevant test case surrounds a gemara in Nazir (3b), which debates whether a nazir may drink Kiddush and Havdala wine. The gemara's conclusion is unclear, but many maintain that he may not – even though a person cannot cancel a mitzva through a shevu’a (see here). The simplest manner of explaining this dispensation is that a nazir does not directly ban himself from drinking wine; if he did, he could not employ nezirut to prohibit mitzva wine. Instead, the nazir adopts the status of a nazir, which then invites a set of halakhot which includes a prohibition for wine. Since this process in indirect, it can prohibit even wine of a mitzva. This is the basic premise of both the Brisker Rav and R. Meir Simcha of Dvinsk in their comments on this gemara.
This definition of nazir would also dramatically affect the application and dynamics of the bal yachel prohibition for nazir. The Torah prohibits one from violating his oath: “lo yachel devaro,” “he should not defile his declaration.” This syntax implies that the foundation of the prohibition is the defilement of a verbal commitment. If a nazir merely accepts the personal transformation but does not directly prohibit wine, perhaps the bal yachel prohibition should not apply. This is indeed the premise of the gemara in Nedarim (3a), which questions the applicability of bal yachel for a nazir and only accepts this prohibition based on equating a nazir to a classic neder.
Based on this uncertainty, the Minchat Chinukh poses an interesting question. Although a person who only adopts a narrower nezirut from wine transforms into a complete nazir, would he violate bal yachel if he came into contact with a dead body? Since he did not actually articulate the prohibition of contact with tum’a, perhaps he shouldn’t violate bal yachel. This question is predicated upon two very important assumptions. First, the Minchat Chinukh assumes that bal yachel violation consists of violating oaths; any prohibition not referenced in the original declaration would not violate bal yachel. This is not entirely indisputable, as many view the prohibition of bal yachel as partaking of objects or activities that the original declaration affected. For example, if Reuven bans his object for Shimon's use, quite possibly Shimon may violate bal yachel by partaking, even though Shimon never issued an oath and is not violating a declaration. Reuven created a ban on an object (for Shimon), and Shimon's partaking of this violated item constitutes bal yachel. Similarly, by stipulating buying into nezirut, a person has triggered a Torah mandated set of prohibitions; violating those prohibitions may constitute bal yachel even though the nazir did not explicitly mention these issurim. (See the Kehillas Ya'akov, Nazir, siman 2, for an elaboration upon the nature of bal yachel in response to this assertion of the Minchat Chinukh.)
Additionally the Minchat Chinukh assumes that a classic nazir does indeed directly reference the respective prohibitions, and by extension does violate bal yachel. Even a person who declares general and unconditional nezirut is essentially directly referencing the package of issurim that the Torah outlines; by drinking or shaving, he has defiled his previous statement and violates bal yachel. The only question pertains to someone who specifically excludes nazir-based issurim; even though the issurim emerge involuntarily, perhaps bal yachel should not apply in such a case. According to the Maharik, in contrast, there is effectively little difference between standard nazir designation and one who adopts a partial nezirut and absorbs the entire package. In each instance, the person merely redefines himself as a nazir and receives new halakhot geared for his newfound status. Since there is no discrepancy between classic nazir designation and partial nazir designation, there should be no difference when it comes to bal yachel. At first glance, it appears that the Minchat Chinukh disagrees with the premise of the Maharik.
An additional question would surround the separability of thee issurim of a nazir. If the Maharit is correct, they entail one inseparable package, as alluded to earlier within the framework of the Rabbanan's position regarding partial acceptance yielding complete nezirut. A second issue pertaining the integration of these prohibitions surrounds the question of “kollel.” Halakha typically does not allow for overlapping issurim – ein issur chal al issur. Thus, for example, if a Kohen Gadol marries a woman who was first divorced and subsequently widowed, he is only liable for one prohibition; an already forbidden item cannot become forbidden a second time. However, if the second prohibition is broader in scope than the original, it is referred to as issur kollel and can devolve upon the already forbidden item. For example, when Yom Kippur commences, eating even non-kosher food is banned due to the prohibition of eating on Yom Kippur. Since the Yom Kippur prohibition affects a broad spectrum of food, it also superimposes a prohibition upon non-kosher food. Would nezirut similarly become superimposed upon wine that was already forbidden by a previous oath? By drinking the wine, would a nazir violate his previous oath, or would he also violate his subsequent nazir declaration, since it is broader in that if also prohibits tum’a contact and shaving?
This may be the subject of a machloket Tanna’im between R. Shimon and the Rabbanan (Nazir 4a). If the various prohibitions are one package, the prohibition of wine may just be an element of a broad spectrum ban on multiple items. This breadth may allow the wine-aspect of a nazir package to superimpose upon a previously generated prohibition upon that wine. If, however, the prohibitions are autonomous, the issur of wine cannot be cast as broad simply because it incidentally is accompanied by related prohibitions.