Akirat Davar Min HaTorah Part 1 (Halachic Methodology 18)

Perhaps one of the most critical topics to understand the nature of the halachic process is akirat davar min haTorah, the ability of the courts, navi, or king to temporarily uproot a law in the Torah.  As we argued when discussion pesikat halacha bishaat hadechak, the parameters of making halachic decisions in extenuating circumstances, understanding Superman requires understanding Kryptonite – understand when the normal rules break down to understand the nature of the system.   As I was focusing on some of the broader issues, I unfortunately had to skip some of the more complicated theoretical issues.  The shiur and sources are available here.  The second shiur is available here.  Summary to follow.

The importance of this topic can be seen in another way.  Rabbi Tzvi Hirsch Chayes, the Mahartz Chayes, in his Torat Neviim explains why he wrote a book dedicated to this topic.  To this he responded that he was living in an age (the early years of the Reform Movement), when there were movements that were uprooting the Torah in the name of modernity.  He wanted to explain what circumstances warranted akirat davar min haTorah and reflected commitment to the system as a whole, and what circumstances showed rebellion.  Understanding this topic sheds light on the cognate topic mentioned above – when is trying to push the halachic system to its limits legitimate pesikah bishaat hadechak (here and following posts), and when is it rebellion, an attempt to jettison the word of God for other values. 

To the topic:  the Gemara in Yevamot 89-90 tries to determine whether or not beit din has the ability to uproot the Torah.  It raises many cases that might prove that it does.  The first attempt is monetary.  However, the Gemara notes that this could be explained as hefker beit din hefker ­–the rule that allows the courts to relinquish people’s rights to their money, and perhaps re-appropriate it.  The parameters of this law and its relationship with akirat davar min haTorah by the end of the sugya are complex.  I dealt with it in a recent shiur available: here.

Without getting into details, the Gemara suggests several cases that may indicate that beit din has the ability to be oker davar min haTorah and rejects it by claiming that they are all shev v’al taaseh – passive.  Passive cases can either be different because 1) they are less stringent and the courts have the ability to uproot laws of level X and not X+Y or 2) passive violation is not really uprooting.  The distinction between these two is whether the defining principle is the nature of the law (positive vs. negative commandments) or the actual implementation of the sin.   For example, is putting on a four cornered garment without tzitzit considered active or passive?  On the one hand, you did something.  On the other hand, the sin is really passively being derelict in wearing tzitzit.  These questions are dealt with at length in the Kovetz Hearot 69 and Rabbi Tanchum Cohen has a wonderful article in the Kol Tzvi on Yevamot showing how these two perspectives are taken consistently throughout Ashkenaz and Sfard.

The Gemara then notes that in some cases we find even active uprooting of laws, bringing the example of Eliyahu on Har HaKarmel and everything he did in the story of the prophets of Baal.  The gemara responds that Eliyahu’s case was different as it was a case of “migdar milta – to fix a breach in the Torah.”  It is not clear whether this means that under certain circumstances we can apply akirat davar min haTorah more expansively, or if this is a different mechanism.  For the clearest exposition of this, see Teshuvot HaRitva 180.

More important for our purposes is the why.  What justifies uprooting something from the Torah, the eternal expression of the divine will?  Perhaps the most powerful is that of Rambam – it is a svara.  It is simply logical that if we must temporarily suspend a law to protect the system, we can.  The Rambam gives the example of amputation- we cut off an arm to save the patient’s life, or in the words of the Gemara, violate one Shabbos so more will be kept.  For example, he notes, if a generation is particularly weak in Hilchot Shabbat, you can execute the death penalty even for rabbinic laws to instill the importance of Shabbos into the community.  The Radbaz notes that this logic, that allows the prohibition against killing to be waived against person X for the sake of the Shemirat Shabbat of the community, assumes that the Jewish people are one unit and the Torah is one unit.  Thus, I can violate one halacha against one person to protect a different mitzvah for others.  [Mahartz Chayes notes that this is similar to the cases in which we allow someone to violate a minor sin to prevent someone else from violating a major one.  The parameters of this Halacha are too complicated for now.]

Rabbi Aryeh Klapper pushes farther.  The Rambam famously explains that law is unlike medicine.  Law, including Torah law, is created to be the best system for most people at most times.  However, by definition, there are some people at sometimes for whom it is not the best system.  Medicine, on the other hand, in aimed at the individual patient.  However, if you take the medicine model as Rambam uses it in both places, what emerges is as follows:  The pristine theoretical Torah never changes – it is law, the best possible law, but still law.  Thus, there are times when it is not the best for a certain person.  If there comes a point where by applying a specific Halacha, we put the system in danger, we have the power to temporarily suspend the law.  In other words, theoretical Torah is not like medicine, but in practice, sometimes it is.

However, there is more.  As Rambam notes, while a Navi can temporarily uproot a law, he cannot do it forever.  This is because that would violate the belief that the Torah as a system is eternal.  It is for the same reason that Chazal cannot add a mitzvah and call it a Torah law – this is bal tosif for Rambam.

Other explanations, which may overlap, are suggested by other Rishonim and Achronim.  Rashba in one place compares it to aveirah lishmah, a sin done for the right reasons.    He also suggests that the accusation of the Gemara that לא חרבה ירושלים אלא שהעמידו דינין על דין תורה means that they did not use akirat davar min haTorah when they needed to.  In yet another passage, he provides pesukim.  For a navi, the source of his power comes from the commandment to listen to him, and for the rabbis, from the general obligation to listen to them.  Rabbi Elchanan Wasserman, noting a contradiction in passages in Chazal whether we only listen to Chazal when they tell us “right is right and left is left” or even when they tell us the opposite, suggests that the latter passage refers to cases of akirah.  The Tashbetz suggests that the ability of Chazal to uproot the Torah stems directly from their ability to set up takkanot in general.

While most Rishonim assume that we can only uproot the Torah passively, the Yerushalmi and Tosafot both rule that we can uproot it actively.  Tosafot in several places that we can only uproot it actively if it seems like we are not – meaning we expand a Torah institution so that it seems like we are not violating.  As Rabbi Hershcel Schachter notes, this is probably because it does not seem like a breach in the Torah under those circumstances.

Another important point:  we know in fact that we have many takkanot that passively make us violate laws, such as not blowing the shofar on Shabbos.  One of the conditions that is mentioned is that an akirah can only be lishaah.  How then can we have these laws for so long?  There are two ways of solving this.  One is to assume that passive violations are not an akirah at all and therefore are not time bound.  The Mahartz Chayes suggests a different answer.  Lishaah can either mean temporary, or for the sake of the moment.  Meaning, as long as something is needed and we can explain why the akirah is necessary, we can keep it going.  This makes sense philosophically – if we want to maintain the integrity of the theoretical Torah and its eternity, as long as a takkanah can possibly we undone when the time comes that it is no longer necessary to protect the Torah, the fact that it is implemented for thousands of years is of no bearing.  Whether both of these explanations can be combined, I leave for now.

For the methodological points:  Akirat Davar Min HaTorah and Pesikat Halacha Bishaat HaDechak share one very important thing in common –they assume the conclusion before they start.  In the case of akirah, the posek or navi is so convinced that this is necessary, that it doesn’t even matter whether it is technically mutar or not.  In the case of pesikah bishaat hadechak, this is not the case.  The posek has an overwhelming bias towards the conclusion, and is therefore willing to push the system to its limits, but he will never break it.  He is ready to accept a “no” if he must.  Obviously, if we can avoid akirah through creative interpretation, we will.

These both assume the conclusion because they both assume necessity.  This leads to a few conclusions.  First, these mechanisms must be available, at least in principle in every generation.  It does not make sense to say only Chazal had the ability to save Torah when push came to shove.  Second, it requires a very good understanding of reality.  Here, a mistake in understanding reality directly causes a mis-implementation of psak in a way much more dangerous than a general psak.  Third, as these mechanisms either fall on the outskirts of the Halachic system or in a sense from outside, the only thing really controlling their use is the integrity of the posek.  For this reason, the Rambam and Shulchan Aruch both end their discussion with a warning that everything must be done lishem shamayim, for the sake of heaven.  There are virtually no mechanisms from within the system that can stop a posek from arguing that he understands the reality as needed emergency moves.

Last point for now:  Much heated discussion has been generated over the question of whether modern times require us to push the Halachic system to its limit.  The argument, in many respects, centers around these questions.  Are the people making the decisions 1)worthy of making calls like this 2) doing it with integrity 3)doing it because they are convinced the Torah is eternal and this is what is needed, or because they think the Torah is flawed.  If the people pushing to change Halacha are doing it because they think Halacha as a system is flawed, then they have violated the fundamental philosophical principle of Torah.  For our purposes, it doesn’t matter whether their critiques are against the Torah or Chazal, as belief in Chazal is also central to our belief system.  I have not seen many claims that we should employ akirah, but creative interpretations abounds.  As I have explained here, I think the same philosophical principles must be taken into consideration when making those moves.  Anything less is almost an illegitmate akirat davar min haTorah.   

Soon I should have posted another shiur which shows how these principles were implemented in three twentieth century teshuvot, for those who think that only Chazal used these arguments.   In those case studies you will see many of the above points illustrated, especially the need to prove necessity.





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