Professional Courtesy: The Authority of Experts
Adapted from the writings of Dayan Yitzhak Grossman
During the fifth cholera pandemic (1881-1896), governments banned the sale of “old” meat—where too much time had elapsed since slaughter—because it was believed to pose a cholera risk. Abiding by this regulation would entail significant economic loss for Jewish butchers in the period before Rosh Hashanah, because they would be unable to dispose of the expected large volume of treifos on a compressed timetable.
The great Polish gaon R’
Eliyahu Kalatzkin[1]
was asked whether they were obliged to follow the law.[2]
He ruled unequivocally that they must. Although “the Torah spares the money of
the Jewish people,” the Gemara says this does not apply in a situation of
mortal danger.[3]
In the course of his analysis he makes a number of points that are relevant to
the various currently-recommended prophylactic measures against the spread of the
new coronavirus:
- Although
there is a dispensation to risk one’s life in order to earn a livelihood (see previous
issue), this only applies when one’s entire livelihood requires assuming the risk.
Avoiding financial loss, even great loss, isn’t reason enough. Additionally,
the dispensation is only to risk one’s own life; there is no justification for
the butchers to risk their customers’ lives by selling them tainted meat in
order to avoid incurring a financial loss themselves. - Chazal give
credence to the opinions of medical experts and rely upon them as a basis for
leniency even in areas of law as serious as nidah.[4]
Even the Chasam Sofer,who maintains
that we do not accept experts’ diagnoses in specific cases as definitive, only as possibly correct,[5]
agrees that we do accept their general scientific assertions as true. - The
principle that “Hashem protects the simple,”[6]
invoked by the Gemara to justify engaging in risky behavior,[7]
only applies where it is impossible to avoid the risk, but here customers can,
and therefore should, insist on purchasing only recently-slaughtered meat. - Dina
d’malchusa dina, the idea that halacha recognizes secular law,
applies here, particularly since the law is designed to promote the public
welfare.[8] - Although
eating on Shabbosand Yom Tov is a mitzvah,the principle that “one who obeys a mitzvahwill know no evil”[9]
(and “those going to do a mitzvah are not harmed”) is inapplicable.[10]
Even if the situation is not considered one in which “damage is common,” one
may not rely on the principle of shomer
mitzvah when fresh meat is available.[11]
To the best of modern scientific knowledge, cholera is not actually
transmitted through spoiled meat, but usually through the fecal-oral route, where
food and water contaminated with sewage that harbors cholera bacteria are
ingested. Nevertheless, it seems obvious that Rav Kalatzkin’s basic points all
remain valid, and that he would still argue that the consensus recommendations
and regulations of experts and government should be followed.
May fulfilling our obligations
earn us the protections of shomer mitzvah lo yei
[1]In
the year 5688, R’ Simcha
Zelig Rieger, the Brisker Dayan, turned to Rav Kalatzkin with a
request that he endorse a ruling of his allowing an agunah to remarry,
in the course of which he explained that “it is known to his honor that the Gaon Av Bais Din (of Brisk, i.e.,
the Brisker Rav) does not involve himself in matters of hora’ah, no
matter how trivial.” (Devarim
Achadim 43)
[4]Nidah 22b. The interpretation of
this sugya, and the resulting question of ne’emanus harof’im, are
the subject of extensive debate among the poskim: Shu”t Maharik,
shoresh 159;
Shu”t Maharam
Lublin 111;
Shu”t Avodas
HaGershuni 22;
Shu”t Chacham
Tzvi 73;
Shu”t Shav
Yaakov Y.D. end of 42 s.v. ve’od
yesh l’tzareif; Shu”t Meil
Tzedakah 34 s.v. v’eilchah
v’ashuvah; Shu”t Kenesses Yechezkel end of 32 s.v. v’ra’inu,
end of 34 s.v. amnam im harofei;
Shu”t R’
Chaim HaKohen Rappaport Y.D. 35 p. 66
column 2; Shu”t Maharsham cheilek 1, 13 s.v. v’hinei ru”m, s.v. v’gam matzinu,
cheilek 2,72 s.v. hinei b’guf
davar zeh,182 s.v. hinei b’guf
din. Cf. Shu”t Harei
Besamim mahadura tinyana end of 121 s.v. nachzor;
Shu”t Bais
Yitzchak E.H. cheilek 1, 18:2;
Shu”t Emek
She’eilah E.H. 11;
Shu”t Teshuras Shai mahadura kama 384
and 426;
Darchei
Teshuvah Y.D. 187:98;
Shu”t Imrei
Yosher cheilek 1,
97 s.v. amnam mitzad
amiras harof’im; Daas Kohen 140
and 142;
Shu”t Heichal
Yitzchak E.H. cheilek 1, 8;
Shu”t Igros Moshe Y.D. cheilek 2, 69,
cheilek 4, 17:17;
Shu”t Mishneh
Halachos cheilek 5, 214;
Taharas Habayis cheilek 1 p. 258, Shu”t Yabia Omer cheilek 8 E.H.
4:1.
[5]Shu”t
Chasam Sofer Y.D. 158 s.v. umechutani hagaon,
173.
[7]Avodah Zarah 30b and numerous
other places.
[8]See
Shu”t Sheivet
HaLevi cheilek 10,
291
on the applicability of the principle of dina d’malchusa dina to
regulations intended to prevent traffic accidents. See Shu”t Minchas Asher cheilek
2, 123 for a discussion of the fundamental question of the extension of the
principle beyond dinei mamonos.
[10]Pesachim 8b. Cf. R’ Avraham Tzvi
Margaliot, Shluchei
Mitzvah Einan Nizokin.
[11]Additionally,
S’dei Chemed (Divrei
Chachamim 82 s.v. hein emes,
and cf. cheilek 4 klalim ma’areches hashin klal 58
and klal 100:5)
suggests that the principle of shomer mitzvah only applies to danger of
a segulah nature, as opposed to natural danger. In fact, Rav Kalatzkin
himself makes this distinction elsewhere (Even HaRoshah
14,
as cited in S’dei Chemed klal 100), although his justification seems to
be that natural danger is automatically considered common, a somewhat puzzling
assumption. It seems likely that he only means that the particular natural
danger that he was considering there is common. In yet another discussion, he
invokes shomer mitzvah in the context of cousin marriage (at least in
the Talmudic era, when people acted with purer intentions than they do today),
despite the fact that it entails natural danger, since the danger is “not that
common.”
The assumption of Rav Kalatzkin alluded to above that the
principle of shomer mitzvah only applies to one acting with pure and
unselfish intentions would seem to constitute another argument against the
principle’s applicability to our case. Cf. S’dei Chemed Divrei Chachamim beginning
of82and Rav Margaliot ibid. os 7 for further discussion
of this position.