Pesachim Perek 2 – 24b-25a Pikuach Nefesh

  • Rav Ezra Bick
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IN LOVING MEMORY OF
Jeffrey Paul Friedman z"l
August 15, 1968 – July 29, 2012
לע"נ
יהודה פנחס בן הרב שרגא פייוועל ז"ל
כ"ב אב תשכ"ח – י' אב תשע"ב
ת.נ.צ.ב.ה.

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 Sources for the shiur:

Gemara: From 24b, "Meitivi, Issi ben Yehuda...", to 25a "...lo hosif lo."
 
The shiur will mostly serve as an introduction to the NEXT topic, which is pikuach nefesh. For this purpose, you should learn the following:
 
Sanhedrin 74a "Amar R. Yochanan meshum R"S ben Yehotzadak" to 75a, the end of the perek.
Tosafot 74b, s.v. "veha."
                    s.v. "k'tol."
Ramban, Milchamot ad.loc (17b in the Rif pagination), s.v. "ve-od").
 
[This is a long and complicated Ramban, but a very important one. Do as much as you can.]

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The first part of the gemara is concerned with basar be-chalav. Abaye, who had previously stated that for having hana'a from kilayim one receives malkot even "shelo kederekh hana'ato," since the prohibition is not formulated with an akhila verb, adds that the same is true for basar be-chalav, since there as well the prohibition is not formulated with an akhila verb. We of course were all taught that the issur hana'a of basar be-chalav is derived from the repetition of "lo tivashel gdi bechaleiv imo," and therefore Abaye's conclusion seems to be obviously true. The gemara however is presently based on the derivation of Issi b. Yehuda, who bases the issur akhila and hana'a of basar be-chalav on treifa and orla. Since treifa is formulated with an akhila verb, the gemara raises the possibility that accordingly basar be-chalav should be excluded in cases of "shelo kederekh," like treifa. Abaye answers that although logically this may be so, the absence of an akhila verb for basar be-chalav is not seen as omission, but as a positive indication that no distinction should be made between kederekh and shelo kederekh.

The gemara proceeds to a discussion of medicine using issurei hana'a. (The connection between this and the discussion of shelo kederekh hana'ato will be apparent at the end, on 25b). Since this is a particular application of the general discussion of saving a life through issur - pikuach nefesh - we will first examine some aspects of the sugya in Sanhedrin (74a-75a) which is the source of the laws of pikuach nefesh.

The sugya may be divided into a number of rules:

a. Yeihareg ve'al ya'avor: (74a)

1.For all mitzvot, if one is ordered to transgress on penalty of death, one should transgress rather than die, except for three issurim - murder, idolatry, and arayot (prohibited sexual relations, mainly incest and adultery). These three prohibitions follow the rule of "yeihareg ve'al ya'avor" (die rather than transgress). For the case of idolatry, the gemara (74a) offers a textual derivation. For the case of murder, the gemara writes, "svara hee" - there is no derivation, but rather it is pure logic: "You think your blood is redder? Perhaps his (the victim's) blood is redder!" The gemara then states that arayot are equated by the Torah with murder.

2. Sha'at hashmad - in a time of religious persecution, even the slightest obligation must be fulfilled, even if it will result in death.

3. Parhesia - even in normal times, if the transgression is to be performed publicly (before ten Jews), even the slightest obligation must be fulfilled, even at the cost of one's life.

b. Exceptions (74b) - The gemara asks why Ester did not die rather than marry Achashverosh:

1. Karka olam - Abaye answers that in sexual relations the female role is passive.

2. Hana'at atzman - Rava answers that if the motivation of the coercer is for his own benefit, rather than in order to deliberately cause a Jew to transgress, the rule of yeihareg ve'al ya'avor does not apply.

What is the nature of the obligation to die rather than to violate certain mitzvot? The answer is dependent on an analysis of the gemara's discussion of Ester's marriage to Achashverosh.

A. Tosafot

The last two exceptions above are offered by the gemara as answers to the question, "veha Ester parhesia havi (Why did Ester agree to marry Achashverosh, since the transgression was public)?" Rishonim ask why the gemara did not base the question on the fact that Ester is a case of arayot, which would be subject to the rule of yeihareg ve'al ya'avor even if it was not a public transgression. This question highlights an uncertainty concerning the answers of Abaye and Rava - would they be effective in cases of arayot (as well as the other two cardinal sins)? In order to answer this question, we must understand the rationale behind the two exceptions.

Tosafot (s.v. "veha") explains that the gemara did not ask about the arayot in Ester's case because it knew in advance that karka olam would remove the necessity of yeihareg ve'al ya'avor in cases of arayot. The gemara believes however that parhesia (in public) would not be neutralized in this way, and Abaye answers that karka olam neutralizes the obligation of yeihareg ve'al ya'avor even in cases of parhesia.

What is the reasoning behind the "hava amina" of the gemara. Tosafot explains that the explanation of karka olam is that she is passive and does not commit a positive action. Since the original source of yeihareg ve'al ya'avor in cases of arayot is the logic applied to murder, Tosafot argues that the logic of "mai chazit" only prevent someone from DECIDING to kill another in order to save his own life, since PERHAPS the "blood of the other is redder." The outcome of the logical argument is that one can never choose one life over another, so in no case murder is there a clear priority of pikuach nefesh. Hence, Tosafot argues, if someone will die through my inaction, and I can choose to save him but only by die myself, the very same logic calls for inaction, for how do you know that HIS blood is redder; perhaps YOUR blood is redder. Tosafot's test-case is where they are going to throw you on a baby, who will be crushed. If you resist, you will be killed. Tosafot rules that one should do nothing, and allow them to throw you on the baby, and claims that this conclusion derives from the basic logic of "mai chazit." By extension, the same holds true for arayot, which is equated with murder. Hence, Tosafot explains, a woman need not choose to die rather than suffer a transgression of arayot, since she does need to perform any positive action in committing the transgression. She does not CHOOSE to prefer her blood over the transgression, since passive non-commission of the transgression is not a positive choice.

Why does this argument not apply to parhesia? Parhesia is not based on the logic of mai chazit. Parhesia is based on kiddush HaShem. That is why it requires yeihareg ve'al ya'avor irrespective of the severity of the transgression. Hence, Tosafot argues, it is logical NOT to distinguish between passive and active commission of the transgression, since in any event there is a public desecration of the name of God.

Abaye, however, answers that in parhesia as well, karka olam is effective in negating the obligation of yeihareg ve'al ya'avor. This is not an extension of the logic of karka olam in arayot, but a new argument. Apparently, the nature of the desecration of the name of God (chillul HaShem) is lessened when the transgression is committed passively. Since one is not actively choosing life over the word of God, but merely allowing a transgression to happen, this is not as serious as the usual case. I think the reason for this distinction is that chillul HaShem is dependent on how the act is PERCEIVED (which is why ten observers heightens the degree of chillul HaShem). A positive action is a more dramatic and impressive demonstration than a passive transgression, even though the prohibition in both cases is legally equivalent.

Aside from Tosafot's interesting explanation of karka olam, we may conclude from Tosafot that there are two distinct reasons for yeihareg ve'al ya'avor:

1. The severity of the prohibition, either in terms of the transgression involved (avoda zara) or in terms of the practical results (murder - the loss of life of the victim, and by extension, in arayot as well);

2. Kiddush HaShem, created by the presence of either sha'at hashmad, or parhesia. In this case, if it is a case of hana'at atzman, the situation of kiddush HaShem is neutralized (Rava).

Since the logic of hana'at atzman is clearly directed to the effects of kiddush HaShem - the situation of kiddush HaShem is apparently created by the intent of the non-Jew to use this incident as a test of your devotion to Halakha, which is absent if he has personal benefit as his object - Tosafot would not accepthana'at atzman as effective in cases of the three cardinal sins, which are not based on kiddush HaShem.

B. The Rambam

All the halakhot of yeihareg ve'al ya'avor are cited by the Rambam in Hilkhot Yesodei HaTorah, ch. 5. The Rambam opens this chapter with the words, "The entire house of Israel is commanded to sanctify this great Name (of God) as is written, "and I shall be sanctified in the midst of Bnai Yisrael..." (5,1). This is followed with ALL the halakhot we listed above, as defined in the sugya in Sanhedrin. It is apparent that the Rambam, in contradistinction to Tosafot, sees only one category of yeihareg ve'al ya'avor. The three cardinal transgression require yeihareg ve'al ya'avor because the chillul HaShem in those case is so great that even in private there is an absolute need to prevent chillul HaShem. It is not the severity of the transgression itself which overrules the principle of pikuach nefesh, but rather the severity of the prohibition is a cause of heightened chillul HaShem. Ultimately, the only reason for yeihareg ve'al ya'avor is the consideration of kiddush HaShem and chillul HaShem.

The Rambam makes this clear in halakha 5: "Anyone about whom it is ruled that he should die rather than transgress, who transgresses rather than dies, desecrates the name of God... but nevertheless, since he acted under duress he does not receive malkot, and is surely not executed by the court even if he murdered...." The act of murder or idolatry is considered to be one of duress and their is no penalty, even though he was prohibited from committing it. The prohibition was one of chillul HaShem, not one of murder. Murder per se is not an exception to the rule of pikuach nefesh, but only the chillul HaShem which results from a case of murder.

C. Ba'al Hamaor

The Ba'al Hamaor (Sanhedrin ad.loc.) rules that hana'at atzman permits one to transgress even arayot and idolatry. Since it is clear that hana'at atzman is an anti-chillul HaShem factor, it is clear that he agrees with the Rambam that arayot and idolatry are based on chillul HaShem. (The Ba'al Hamaor agrees that murder is not permitted in cases of hana'at atzman - since the logic of "mai chazit" applies in any event).

The Rambam however does not agree with the Ba'al Hamaor (Yesodei HaTorah 5,2). What is the difference according to the Rambam between the chillul HaShem of parhesia, which is obviated by hana'at atzman, and that of the three cardinal transgressions, which is unaffected?

The answer is simple. The element of chillul HaShem in parhesia is created by the external framework in which the transgression is performed. In other words, the chillul HaShem here is, as I explained above, in the PERCEPTION of the transgression. The external circumstances affect the way in which we understand the significance of the act. Hence, the motivation of the non-Jew is a mitigating factor, changing the interpretation of the act. Since the chillul HaShem is dependent on the external interpretation, hana'at atzman removes the problem of chillul HaShem. However, in the case of the three cardinal transgressions, even though the reason for yeihareg ve'al ya'avor is chillul HaShem, this is not chillul HaShem elicited by the external circumstances of the transgression (which is performed in private) but by the inherent nature of these extra-serious crimes. Hana'at atzman does not neutralize chillul HaShem per se, but only the external interpretation which gives rise to chillul HaShem. hence, in these cases, there is chillul HaShem irrespective of the motivation.

The Ba'al Hamaor apparently maintains that the absence of a motivation to deliberately cause the Jew to abandon his faith removes the act totally from the realm of kiddush and chillul HaShem. Although there is a relative difference between regular transgressions and the three cardinal ones, both engender chillul HaShem only if the circumstances lend themselves to an interpretation of the act as a test of one's devotion to God's law. Hana'at atzman therefore is always effective in negating that interpretation and consequently in removing the obligation of yeihareg ve'al ya'avor.

D. The Ramban

The Ramban (Milchamot, ad.loc., summarized by R. David on our sugya in Pesachim) disagrees with the Ba'al Hamaor. He explicitly explains the basis for his disagreement - hana'at atzman is relevant only to yeihareg ve'al ya'avor based on kiddush HaShem; the obligation of yeihareg ve'al ya'avor in the three cardinal sins is based on the severity of the prohibition and not kiddush HaShem. This, as we saw, parallels the opinion of Tosafot. The Ramban points out that cases quoted by the Ba'al Hamaor himself contradict his position. There are two cases of medical yeihareg ve'al ya'avor in the gemara. One is at the end of the sugya in Sanhedrin - a man so "lovesick" that he will die if he is not allowed to have some sexual contact with a married woman, and the ruling was that he should die. The second is our gemara in Pesachim - medicinal use of "asheira," which is assur behana'a as an object of idolatry, is prohibited. The Ramban argues that these are in effect cases of hana'at atzman. In the distinction between hana'at atzman and a motivation to cause a transgression, the active factor is the motivation to cause a transgression. In that case, there exists circumstances of kiddush HaShem. ANY OTHER case lacks those external circumstances. In the case of a non-Jewish threat, the opposite of kiddush HaShem is hana'at atzman. In the case of illness, where there is no personal threat, the circumstances of kiddush HaShem are lacking. The main point is that the transgression has NOT been defined as symbolizing a rejection of the authority of the torah. Hence, according to the Ba'al Hamaor, it should be permitted to use arayot or idolatry in medicine.

Since the Ba'al Hamaor discusses these cases himself, it is clear that he is defining hana'at atzman differently than the Ramban. Apparently, he maintains that the intention of the non-Jew for his own benefit is a special mitigating factor. The intention of the transgressor for his own benefit (which is the case in illness) is still considered a case of kiddush HaShem. The question is: Why should an intention to benefit be considered chillul HaShem, if he is not intending to deliberately transgress for the sake of transgression, any more than if he wants to transgress in order that the non-Jew should benefit? We shall attempt to answer this question next week.

One final point about medicinal use of idolatry. The prohibition to have hana'a from an asheira is not itself an act of idolatry. One who eats a fruit grown on an asheira tree is not subject to the death penalty. It is a "lav," like other issurei hana'a. The Ba'al Hamaor explains, and other Rishonim agree, that this is included in the category of "abizraihu." Any prohibition belonging to the family of avoda zara, even minor ones, is included in the obligation of yeihareg ve'al ya'avor. Another case is the one mentioned of the lovestruck suitor, who would have settled (based on his doctor's advice) for a conversation with the married woman. Clearly this is not a capital crime. this too is defined as abizraihu of arayot.

In the latter case, this point is undisputed. However, in the case of asheira, it is not as clear. Speaking to a married woman (in a sexual context) is a minor form of sexual relations. But having hana'a from a fruit of an asheira is not a lesser form of worshipping it. The fruit is assur because in the past someone worshipped the tree. Having hana'a now is akin to having hana'a from basar be-chalav or chametz. Should this be considered abizraihu of avoda zara?

The Ba'al Hamaor argues that it should. he defines abizraihu as having any prohibited contact with avoda zara or arayot. Tosafot (Pesachim 25a, s.v. "chutz") claims that the case of asheira is where the doctor tells him that the cure is dependent on the tree being an asheira - another tree of the same species will not work. The reason for Tosafot's insistence may be that he wishes that the benefit be not merely from a tree that is assur because of avoda zara in the past, but now he is benefiting from the avoda zara itself. This would increase the connection of this prohibition with the category of avoda zara as abizraihu.

There are then two interpretations of the case of asheira; one that it merely happens to be an asheira, but the benefit is from the natural properties of the tree, and one that the benefit is specifically from the nature of the tree as asheira. This point will be important when we consider the ways to answer the question of the Ramban on the Ba'al Hamaor raised above. Keep it in mind when you read the Ran on the sugya in Pesachim.

 

Next week:

We will be discussing specifically the use of issurim (both cardinal and ordinary) in medicine. Learn the gemara up to "Itmar" on 25b. We will first discuss yeihareg ve'al ya'avor in medicine (which we began today), then other issurim in (non-pikuach nefesh) medicine (which is a continuation of the discussion in the previous shiur of shelo kederekh hana'ato).

See:

Rambam, Hilkhot Yesodei HaTorah 5;4,6.

Ran Pesachim (on the Rif, p. 6a) s.v. "Vekasheh", from "ve-eilu hakushyot."

R. David s.v. "bakol."

[For a summary of most of the aspects of the sugya in Sanhedrin, including those not discussed in the shiur, see R. David here].

Rambam Yesodei HaTorah 5,8 (Compare with Maakhalot Assurot 14,10-11).

R. David s.v. "midi."