Volume 20 Number 89
                       Produced: Tue Aug  8 21:08:29 1995

Subjects Discussed In This Issue: 

Chilul Shabbat for Mechalelei Shabbat
         [Shmuel Himelstein (n)]
Chilul Shabbos and "saving him with his soul"
         [Kenneth Posy]
Daas Torah
         [Jonny Raziel]
Ramban/Rambam in IDF ruling
         [Moshe Goldberg]
References to Daas Torah.
         [Kenneth Posy]


From: Shmuel Himelstein (n) <himelstein@...>
Date: Sun, 6 Aug 1995 11:05:37 GMT
Subject: Chilul Shabbat for Mechalelei Shabbat

In an earlier posting I asked about the general Halachic rule involved
in being Mechalel Shabbat for someone who is a Mechalel Shabbat. (The
specific case was Foreign Minister Peres having allegedly returned on
Shabbat from a meeting with Yasser Arafat, where religious soldiers had
to be Mechalel Shabbat when he arrived.) Since posting my original
comment, I have checked somewhat, and would like to clarify matters in
this regard.

An article in Tehumin (Vol. 3, pp. 24-29) by Rav Avraham Sherman in
essence discusses this very question. The question posed in his article
is as follows: one of the duties imposed on soldiers is guard duty at
Hamat Gader, an alligator farm which is visited by many Israelis as a
tourist attraction. May a religious soldier perform guard duty there on
Shabbat, even though this will entail Chilul Shabbat on his part, and
where the visitors who are being guarded are mainly Mechalelei Shabbat?
(Parenthetically, my older son was assigned just this guard duty on
Shabbat as part of his reserve duty.)

        Rav Sherman notes that while the Halachah stipulates that one is
not Mechalel Shabbat for a Mumar (a "heretic"), this does not apply to
people who were not brought up religiously (literally, a "Tinok
She'nishba" - "an infant who was captured" by non-Jews and brought up by
them, not even knowing that he was Jewish - the term is Talmudic
shorthand for one who grows up never having received any Jewish
education). On this, Rav Sherman quotes the Chazon Ish (Hil. Shechita
2:28): "We are commanded to keep him alive and even to be Mechalel
Shabbat in order to save him." As the Chazon Ish explains it (2:16), the
rule of not helping such a person does not apply except when Hashem's
Hashgachah is overtly apparent (i.e., when it is clear to all that
Hashem rules the world). In other words, the rule would only apply when
the person acting this way was flagrantly violating what is clearly
Hashem's command, and when all around him observe it.)

        Rav Sherman also quotes an earlier discussion of this. Beit
Meir, in a letter to Rav Akiva Eiger, states that in the case of a Tinok
She'nishba one should not be permitted to be Mechalel Shabbat. He argues
as follows: the reason given to permit Chilul Shabbat to save a person
is, "Be Mechalel one Shabbat, so that (the person saved) may keep many
(subsequent) Shabbatot." If, however, the person is a Tinok She'nishba,
the overwhelming odds are that he will not keep Shabbat in the future,
so there is no justification to be Mechalel Shabbat to save him.

        Rav Akiva Eiger rejects this argument and states that if there
was no responsibility to keep a Mechalel Shabbat alive, one should draw
the conclusion that such a person may be killed. "Therefore," he
concludes, "one must say that the Torah takes pity (i.e., is concerned)
about the lives of one of the seed of Israel. Here too, Chilul Shabbat
was permitted in order keep alive a soul of Israel" (i.e., a Jew).
Thus, according to Rav Akiva Eiger, Chilul Shabbat is indeed mandated to
save any Jew's life - whether he keeps the Torah or not.

        Rav Sherman also notes that Rav Elyashiv, Shlita, was asked the
same exact question about guarding people who are taking pleasure trips
on Shabbat, where this involves Chilul Shabbat. In his ruling he
sidesteps the issue of the status of adults who are Mechalel Shabbat but
states that one may guard such people even if this involves Chilul
Shabbat, because - at the very least - the children among them cannot
possibly be classified as Mumarim (heretics), and they certainly have to
be protected against any possible terrorist incursions, etc.

        One should also note that the editor of Tehumin adds an
interesting note: that those non-religious Jews who take such trips,
which might result in religious soldiers being forced to guard them,
should ask themselves whether by their actions they are not responsible
for anti-religious coercion.

        Finally, I would like to bring one more source on the topic,
that being Rav David Tzvi Hoffman (1843-1921), who was the head of the
Bet Din of the Adass Yisroel congregation in Berlin, in his Melamed
Le'Ho'il, Part 1:29. The question asked of him was whether a Jew who is
a Mechalel Shabbat may be counted toward the Minyan of ten adult males
needed for communal prayer. He writes, "As, due to our many sins most of
the Jews in our country are Mechalei Shabbat, and they do not indicate
by so doing that they deny the basic principles of our faith," one can
include them. He stipulates, however, that if a person can go to a
different Shul where there is a Minyan of Shomrei Shabbat without
hurting people's feelings, that is preferable. He then adds: "There are
further grounds for not ruling that these people are considered Mechalel
Shabbat Be'farhesia ("violators of Shabbat in public" - a Halachic
classification which has many Halachic implications, but this is not the
place to go into detail - SH), as most Jews in their area do so. Where
it is the case that most Jews are righteous (i.e., Shomrei Shabbat) and
only a few have the gall to violate this prohibition, (these few) deny
the Torah and are performing an abomination highhandedly and have
thereby left the ranks of the Jewish people.  However, as due to our
many sins most of them do violate the law, ...  each individual thinks
that this is not so great a sin, and that there is no need to do what he
is doing in private (i.e., out of fear of being seen), and what he does
publicly is as if it had been done in private."

        Maybe this discussion does indeed tie in with being Dan Lefaf 
Zechut - giving others the benefit of the doubt.

         Shmuel Himelstein
Phone: 972-2-864712; Fax: 972-2-862041
<himelstein@...> (JerOne, not Jer-L)


From: Kenneth Posy <kpposy@...>
Date: Tue, 8 Aug 1995 12:31:17 -0400 (EDT)
Subject: Chilul Shabbos and "saving him with his soul"

Mr. Kimelman writes:
> One opinion, R Elazar B'Rabbi Shimon, rules that in order to prevent
> desecration of Shabbos the would-be desecrater may be killed.  (See
> Tosafot d"h Chad on 73b re the paradox of desecrating Shabbos by killing
> in order to stop desecration.)  Although all the other opinions reject
> this view - and we do not rule this way - the reason for rejection is
> due to a specific derivation from a passuk.

> It would therefore seem logical to infer that whereas one may not kill
> in order to prevent desecration of Shabbos, one need not do anything to
> save the desecrater's life, certainly an act of desecration of Shabbos.

I think there is a clear distiction that needs to be made here. The
Gemara in Sanhedrin is refering to stopping someone from being mchalel
shabbos. On that it comes out that you are not "netan l'hatzeilo
b'nafsho" (allowed to save him with his soul; i.e. kill him). However,
that gemara does not say at all that after someone has desecrated
shabbos, ch'v, and is now dying, that you cannot do everything to save
him that you would have to do to someone else. I think that even
R. Elazar would agree with that. (Maybe if he lives longer, and
especially if he is saved by frum doctor/soldier, he might do
t'shuva. Ad yom moso t'chakeh lo).
     However, it could be that R Elazar, and the chachamim might agree,
might not allow violating shabbos to prevent pikuach nefesh to someone
*while in the act* of chilul shabbos.


From: Jonny Raziel <JONNYR@...>
Date: Mon, 7 Aug 1995 11:33:49 GMT+0200
Subject: Re: Daas Torah

> Does this mean that if a Gadol or your own personal posek instructs you
> to vote for party X in an election that you are free to disregard this
> psak? (As anyone who has ever been through an Israeli election knows
> that the gdolim here ALWAYS give instructions how to vote).  If so, then
> if I understand correctly you're saying that daas Torah does not apply
> to political questions.  If so, why?
> -- Carl Sherer

The concept of Daas Torah, in the sense of asking a she'ela and
receiving a binding psak concerning issues that are judgemental ("shikul
hada'at"), is foreign to halachic judaism. The term is hardly mentioned
in the gemara or achronim, and certainly not in the context which we are
speaking of.
 However, consulting and taking advice from the gedolei torah to whom
you are close, is necessary,authentic and legitimate, however it does
not have the same status as a psak.
 Accepting a psak is usually confined to definable issues within the
scope of the shulcha arukh, and the term for that is "din torah", at
which point, the psak becomes like an oath which the asker has taken
upon him/her self. However an issue like "should I sell my stocks?"  or
"should I marry this girl" or "should I join this shul" has too many
sides to be condensed into a single definitave answer.
 There are two important questions to be addressed:
1) What parameters are used to define where an issue stands.
2) Even concerning an topic, such as which party to vote for, which 
is clearly a non halachic issue, if someone asks a Rav with the same
intention as he would when asking if his chicken is kosher, (i.e. 
in order to accept the answer as binding), is it indeed binding ?
Yonatan Raziel


From: Moshe Goldberg <mgold@...>
Date: Tue, 8 Aug 1995 12:12:54 +0300 (EET DST)
Subject: Ramban/Rambam in IDF ruling

While the discussion of whether the Rambam thinks there is a positive
commandment to settle in Eretz Yisrael is interesting in its own right,
it is not relevant to the recent ruling by the rabbis about soldiers and
following orders. The ruling did not claim that the Rambam feels that
there is such a commandment.

> "B.  And it is simply clear that the area within which the IDF is
> located and controls, the commandment of the settlement of the Land of
> Israel is being observed as Ramban wrote, it includes also "to conquer
> and not relinquish to the hands of the nations".  

The quote about the mitzvah of settlement is based on the Ramban, not
the Rambam.

> "D.  Therefore, in reply to the question, it is clear and simple that it
> is forbidden for all Jews to participate in any activity which aids in
> the evacuation of a settlement, camp or facility, and so it was ruled
> (Laws of Kings Chapter 3) by Rambam that even if a king commands to
> violate the Torah the command is not followed.

This is the only place in the ruling where the Rambam is evoked -- to
say that one should not obey a king's orders against a commandment of
the Torah.

    Moshe Goldberg -- <mgold@...>


From: Kenneth Posy <kpposy@...>
Date: Wed, 2 Aug 1995 12:53:32 -0400 (EDT)
Subject: References to Daas Torah.

>>      Of course, whether or not the analogy is correct is a political
>> issue that is inappropriate for this forum... ...I do not want to go 
>> into the issue of da'as torah which has
>> been discussed extensively on this list, but suffice it to say that I
>> acknowlege and appreciate the fact that every opinion of these great
>> Rabanonim comes from their deep insight and commitment to Torah and
>> C'lal Yisrael.

> Does this mean that if a Gadol or your own personal posek instructs you
> to vote for party X in an election that you are free to disregard this
> psak? (As anyone who has ever been through an Israeli election knows
> that the gdolim here ALWAYS give instructions how to vote).  If so, then
> if I understand correctly you're saying that daas Torah does not apply
> to political questions.  If so, why?
-- Carl Sherer

      The short answer is, yes [within certain parameters]
      A quick check of the mail-jewish archives shows that there was an
extensive discussion of this topic in volume 10 [68,78] and volume
12-13, and volume 16[73,75]. In addition, on the special topic directory
on the mail- jewish directory of the shamash gopher, there is a article
by Eli Turkel and a transcription of a discussion by R. Aharon
Lichtenstien, shlita on this issue.  Since the last posting was a year
and a half ago, it may be time to rehash that topic, but I doubt
anyone's opinions have changed or that there are new sources to bring
      Actually, I take that back. It seems pretty clear that the
opinions of a sizable group HAVE changed.  I think it is interesting
that the same people [religious zionists] who reject the authority of
acknowledged gedolim [Rav Shach, shlita is a primary example] to
influence "non-halachic" matters, are now trumpeting the "da'as torah"


End of Volume 20 Issue 89