SALT - Wednesday, 4 Elul 5778 - August 15, 2018

  • Rav David Silverberg
            The Torah in Parashat Shoftim (17:11) introduces the prohibition known as “lo tasur,” which forbids disobeying the rulings of accepted body of halakhic authority.  Practically speaking, the Gemara in Masekhet Shabbat (23a) instructs that this prohibition forbids us from neglecting the mitzvot enacted by our Sages.  (The mitzva under discussion there is the requirement to light candles on Chanukah.)  However, the precise parameters of this prohibition are subject to a well-known debate between the Rambam and the Ramban.  The Rambam, in the very beginning of Sefer Ha-mitzvot (shoresh 1), writes that all laws enacted by the Sages fall under this prohibition, such that anyone who willfully transgresses a rabbinic enactment violates the prohibition of “lo tasur.”  The Ramban, in his critique of Sefer Ha-mitzvot, disagrees.  In his view, “lo tasur” pertains only to Torah laws which were interpreted by Chazal – meaning, laws which were established via the Sages’ explanation of the Biblical text, and would otherwise not have been obvious from the text.
            The Minchat Chinukh (496:3) notes that according to both views, we must seemingly reach a counterintuitive conclusion: violating a prohibition stated explicitly by the Torah is less grievous than violating a prohibition which is not stated explicitly in the Torah.  After all, if one transgresses a Torah law which is explicated via rabbinic exegesis, he violates both that law itself, as well as the prohibition of “lo tasur.”  He thus transgresses two Torah violations, whereas one who violates an explicit Torah law is guilty of but one violation.  This conclusion, the Minchat Chinukh writes, would affect the case of a gravely ill patient who desperately needs to eat meat to save his life, and the only meat available is not kosher; specifically, he has access only to meat of a kosher animal that had not undergone shechita (halakhic slaughtering), and to kosher meat that was cooked with milk.  The first type of meat is forbidden by virtue of the prohibition of neveila – eating meat of an animal that was not properly slaughtered, a prohibition explicitly stated by the Torah (Devarim 14:21).  The second type, however, is forbidden by virtue of the prohibition of “lo tevashel gedi ba-chaleiv imo” (“You shall not cook a young goat in its mother’s milk”), which Chazal interpreted as forbidding even the consumption of meat cooked with milk.  As such, whereas eating meat of an improperly slaughtered animal violates only a single Torah prohibition, eating kosher meat cooked in milk violates the prohibition of basar be-chalav (eating meat and milk) as well as the prohibition of “lo tasur.”  In the case of the ill patient, then, the Minchat Chinukh proposes that the patient should preferably eat the neveila meat, rather than the kosher meat that had been cooked together with milk.
            Rav Elchanan Wasserman, in his Kuntrus Divrei Sofrim (34), disputes the Minchat Chinukh’s reasoning, and rules that the patient in this case should choose the kosher meat that had been cooked with milk.  He notes that the Ramban clearly states in his discussion of “lo tasur” that one violates this prohibition only if he specifically intends to rebel against Chazal’s authority.  One who accepts Chazal’s interpretation of the Torah, and acknowledges that the act in question is forbidden by virtue of their interpretation, but nevertheless succumbs to temptation and commits the violation, does not transgress “lo tasur.”  Since he does not rebel against the authority of the Sages, he violates only the actual prohibition, and not the prohibition against challenging Chazal’s authority.  Certainly, then, when a gravely ill patient is compelled to eat forbidden food to save his life, which is, of course, permissible (and even required), “lo tasur” is entirely inapplicable.  Unquestionably, if the patient in this case eats meat cooked with milk, he transgresses only the prohibition of basar be-chalav, and not “lo tasur.”  Therefore, the question becomes whether it is preferable to violate this non-explicit Torah prohibition, or the explicit Torah prohibition of neveila.  Rav Elchanan draws proof from earlier sources that explicit Torah laws are treated with greater severity than non-explicit Torah laws.  (Specifically, Rav Elchanan notes the comment of the Ran, in Masekhet Nedarim (8), that if one takes an oath to commit a Biblically forbidden act, the oath takes effect if the prohibition in question is not explicated in the Torah.)  Hence, the patient in this case should eat the kosher meat that was cooked in milk, rather than the meat of a neveila.
            Rav Elchanan then presents a slightly different formulation of this argument.  The prohibition of “lo tasur,” he notes, cannot be violated by committing an act sanctioned by Halakha.  Once it is determined that a dangerous health condition mandates eating forbidden food, the prohibition of “lo tasur” is not relevant.  This prohibition takes effect only in a situation where committing the act in question violates a law established by Chazal.  In the case of a gravely ill patient, of course, eating the food is allowed.  The question then becomes whether it is preferable to suspend the prohibition of neveila or the prohibition of “basar be-chalav,” as the prohibition of “lo tasur” is not at all part of the equation.