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Sunday, November 11, 2012

Forbidden Fruit (Part 2: Approach)

The first thing to realize when approaching this sugya is that we are dealing with a הלכה למשה מסיני.  While a הלכה למשה מסיני has the status of a Biblical law, it often times has a unique halachic structure compared to a regular law.  In fact, if the law could have been smoothly incorporated into the regular halachic structure without making recourse to a specific הלכה למשה מסיני, then presumably it would have been!

It is hard to describe what we mean by "unique halachic structure", and it is something that you'll get a better feel for as you come across and define more of them.  In any event, "unique" does not mean that you can just say anything you want.  It still has to make sense, and you still need to clearly define what the הלכה למשה מסיני is doing. (For an excellent series of shiurim which develops this idea of הלכה למשה מסיני, among other important topics, listen to Rabbi Yisroel Chait's Mesora 1-3, found here.)

What about the situation of ערלה outside Israel demands a הלכה למשה מסיני?   In general, only the land of Israel (which has holiness) is able to endow things that grow in it with a special status.  It is most unusual to find any agricultural laws applying to something grown outside the land of Israel.  It would seem that the Torah, in seeking to overcome this obstacle of giving a status of ערלה to fruits grown outside the land of Israel, had to make recourse to a הלכה למשה מסיני.

The second thing to realize is that the pure case of the הלכה למשה מסיני is found only in the case of all other lands (other than Suria and Israel).  Suria, because of its proximity to the land of Israel, has an additional Rabbinic status of ערלה which mimics the status of ערלה in Israel itself.

This Rabbinic status of fruits in Suria (in addition to the הלכה למשה מסיני that of course also applies there) is what is responsible for its stringency relative to all other lands.  This is a bit of a paradoxical situation, as normally we would regard a הלכה למשה מסיני as being more stringent than a Rabbinical decree.  No doubt this results from the fact that the הלכה למשה מסיני specifically states that only definite ערלה is prohibited, while uncertain ערלה  is permissible.

Let's first define the exact difference between the doubt (ספק) required for permitting a regular Rabbinic prohibition (the case of fruits from Suria), as opposed to the doubt needed to permit the pure case of the הלכה למשה מסיני.  After we do that, we'll be in a better position to clearly see what we need to define in order to really make sense of the הלכה למשה מסיני itself.


  1. A thought:

    The usual meaning of safek in halacha is a real state of doubt where one is unsure of certain crucial facts. For example, at the market you find grapes and you are unsure if they are from an orlah tree or not. There are a ton of trees close by some of which are orlah trees and some are not - how is one supposed to know if they are from an orlah tree or not? In this case the person is in a state where he legitimately does not know whether the grapes he is holding are from an orlah tree or not. In other words, safek is a positive state where one is unsure of the details of the situation.

    When Levi asks Shmuel to make him some uncertain orlah he is not in a state of safek as the term is usually used. He basically knows that Shmuel is picking the fruits from an orlah tree since this is the nature of their arrangement. What then does safek mean according to the halacha l'moshe mi'sinai? Perhaps safek here means not a vadai. Shmuel can always say "mayyybe Levi found a non-orlah tree this time and decided to take my fruit from that one." It is not a 100% guarantee that the fruits are orlah. If however he sees the fruits plucked with his own eyes he no longer has recourse to this maybe - the fruit is vadai from an orlah tree. Here, safek is not a positive state in its own right but the negation of being a vadai, a state of total certainty.

    1. Good definition. Can you see the difficulty in making sense out of the halacha l'moshe m'sinai that results from this approach?

    2. It sounds like the halacha l'moshe mi'sinai is saying that chutz la'aretz the din of orlah is only on a vadai orlah. To me, this is strange for two reasons. Firstly, why would the din of orlah only be by vadai orlah and not simply on orlah and employ the usual protocol for dealing with safek. Secondly, even if there is some reason for this funny structure, why the split between eretz yisrael and chutz la'aretz?

      By the way, there may be precedent for such a halachik structure elsewhere. See bechoros 58b where the gemara uses the limmud of asiri to learn out that in termuas behemah the animal must be a vadai asiri. If there is a doubt whether it is the tenth or not it is not subject to terumas behemah. While the case is not entirely identical since that is a limmud and this is a halacha l'moshe mi'sinai they are both deoraisa structures that are insistent on a state of certainty.

    3. Regarding your questions (especially the first), it seems like you are asking a philosophical question. If not, please clarify.

      It is a good association you are making to maaser behemah. We looked at the sugya there quickly, and perhaps the answer lies in understanding the nature of counting. If you have to count the animal as the tenth, a questionable count is not a count at all. The nature of counting demands certainty.

    4. Agreed that the first one is kind of philosophical. The second one is the only real halachik difficulty I see with understanding the halacha l'moshe mi'sinai. It's a weird unnatural split in the halachos of orlah. I'm not sure if this is the place to throw up our hands and say that's the nature of HLMMS or if there is further to go.

    5. Do you think that the second question is halachik or philosophical?

      Do you hear the approach we are saying by maaser beheima?

    6. It's a difficulty I see in formulating the halacha though the facts do point to it. If it were possible to find an idea on the table that did not treat chutz la'aretz and eretz yisrael on such a different conceptual footing I think it would be preferable.

      I see the direction you're going but don't totally get it. I do have a question on it. If the idea is that an uncertain count is not part of the count at all and so the tenth vadai is really the same thing as the tenth then why do you need a pasuk? Before the pasuk came along it seems as though one would invoke safek deoreisa l'chumra and have to give both the uncertain tenth and the tenth actual counted as maaser.

    7. 1. Agreed
      2. Hava amina: The animal which leaves the coral tenth is maaser beheima. If uncertain which one it is, then safek...

      Maskana: The animal which is counted number ten is maaser beheima. Since the count is the kovai'ah, if there is a safek, then no animal is counted as ten and there is no shem issur.

      Similar idea by sefiras ha'omer. Why no double count for sfeika d'yoma? One possible answer: Because counting a day with two different numbers is not counting it at all.


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