Eruvin 72  The power of permission- כח דהתירא עדיף

 
As Newton taught us, every action has an equal and opposite reaction.
While this might apply not only in physics, when it comes to human societal behaviour, non-equal and overreaction is also common.
The Rambam (Deos 1,2) teaches us that a person should avoid extreme characteristics and rather aim for the “golden mean.”
For example, a person should not be so emotional that he is angered by everything, yet he also does not have to be emotionally cold like a piece of wood in that he feels nothing.
He should not be so careful with his money that he is scared to spend anything but should also not be such a spend-thrift that he just gives or throws everything away.
The Rambam also notes that it is sometimes necessary for a person to move to the opposite extreme of an attribute that he has obtained an extreme dose of, in order to eventually reach an equilibrium and return to the middle path of balance.
When it comes to the question of how strict to be when it comes to disputes or “grey areas” in halacha, or how many voluntary “chumras” (stringencies) to take on, there is also a wide spectrum in the behaviour of observant Jews.
Some tend to be extreme in their observance, always choosing the strictest view as well as taking on any extra voluntary stringencies they can come up with.
Others, tend to take a minimalistic approach, always choosing the most lenient approach and avoiding anything that might not be an absolute obligation, even if it has some religious value.
Although we find a range of approaches amongst our greatest Rabbis as well (Beis Hillel and Beis Shamai perhaps being the greatest example, and of course we rule like Beis Hillel, though not necessarily for that reason) the accepted approach amongst Chazal seems to be somewhere in-between, the general rule being in cases of doubt or unresolved dispute, we are stringent in biblical matters and lenient in rabbinical matters.
However, on our daf, as well as numerous other places in the Shas, we find a rule that many have taken (whether correctly or incorrectly is subject to debate) as a call to look for leniencies wherever possible.
This principle is referred to be Chazal as כח דהתירא עדיף- the strength (or scope)  of permission is preferred.
It is important to note that many  cases in Shas that involve this principle seem to follow a similar basic pattern- it is a little complex, but please bare-with me, as understanding this structure is essential to understanding this sugya, many others, and the very principle that is the subject of this post.
Stage 1 : We start with a debate regarding a certain case, between two authorities, where the one (let us call him “Rabbi X”) permits or validates something and the other (let us call him ”Rabbi Y”) forbids or invalidates it.
Stage 2 : The Gemara then focusses on the precise conditions under which the debate applies, and someone suggests that under seemingly less stringent conditions, even the stringent opinion would be lenient (or under seemingly more stringent conditions, even the more lenient opinion would be stringent.)
Another view might then counter that the debate applies to both the seemingly more lenient and seemingly more stringent case.
 
Stage 3 : The Gemara then brings a Beraita, Mishna, or other authoritative text that seems to show that the debate only applies under the more stringent (or lenient) conditions, thus challenging the later view that views the debate more broadly.
Stage 4: The Gemara then answers on behalf of the later view, showing that the reason that the proof-text records the debate under the more stringent conditions is to show the   “כח”  (strength or scope) of the more lenient view in that his lenient ruling extends even to the more stringent case, and by way of קל וחומר (fortiori deduction,) obviously to the more lenient case. However, the stringent view is not necessarily limited to the more stringent case and might also extend to the more lenient case.
Stage 5: The Gemara then questions why, if the above argument is true, the proof-text did not rather record the debate under the more lenient conditions to show the “כח” of the more stringent view in that his stringent ruling extends even to the more lenient case, and by way of קל וחומר, obviously to the more stringent case. Then, the lenient view would not necessarily be limited to the more lenient case but could possibly extend to the more stringent case.
Stage 6: The Gemara answers that when given the choice which case to use to illustrated the debate, the proof-text prefers to choose the case that which shows the scope of the lenient view, rather than the case which shows the scope of the stringent view, in its words, כח דהתירא עדיף- we prefer to illustrate the scope of the lenient view over that of the stringent view.
 
Although the daf includes other view and discussions, I will attempt to  select the parts that are part of this core pattern, and use it as a case-study for this principle. Where the pattern of the sugya deviates from this basic pattern, I shall also attempt to point it out and adapt it as best as I can.
Stage 1 : We start with a debate regarding a certain case, between two authorities, where the one (let us call him “Rabbi X”) permits or validates something and the other (let us call him ”Rabbi Y”) forbids or invalidates it.
The Mishna on Eruvin 72a discusses the case where 5 different groups people all spend shabbos in one טרקלין, which seems for the purposes of this post to refer to one villa consisting of one very large room.
This טרקלין  in turn opens to a courtyard which is shared by other houses.
It is obvious that the inhabitants of the טרקלין need to participate in the ערוב חצירות together with the other inhabitants of the courtyard.
The question is, however, whether these 5 groups are to be considered as one as far as the eruv is concerned, and may contribute once to the general eruv on behalf of all 5 groups, or whether each group needs to give its own contribution.
Beit Shamai holds that each group needs to give its own contribution, whereas Beis Hillel hold that all 5 groups may give one contribution together.
For purposes of our “pattern” Beis Shamai is the stringent  “Rabbi Y” who does not allow one contribution to be given on behalf of all 5 groups, and Beis Hillel is the lenient “Rabbi X” who does permit it.
Stage 2 : The Gemara then focusses on the precise conditions under which the debate applies, and someone suggests that under seemingly less stringent conditions, even the stringent opinion would be lenient (or under seemingly more stringent conditions, even the more lenient opinion would be stringent.)
Another view might then counter that the debate applies to both the seemingly more lenient and seemingly more stringent case.
The Gemara considers what the conditions are like in the טרקלין, in other words, how it is divided up.
Rav Nachman suggests that the debate only applies when the room is divided up by a מסיפס (an inferior type of partition-acc to Rashi, “a low partition made of pieces of wood” but see commentaries on  Bava Basra 2b for different definitions).)
However, under more stringent conditions namely if the room is divided by proper מחיצות (halachically valid partitions,) even Beis Hillel (Rabbi X) agree that they are viewed as separate groups and each one needs to make its own contribution to the eruv.)
The Gemara brings a different version of Rav Nachman’s view where he states that the debate applies to both situations, whether the room is divided by a מסיפס  (the lenient case)  or מחיצות (the stringent case)
[the Gemara then deviates from the standard binary dispute and brings another dispute regarding whether the debate applies to a case where the partitions reach the roof or to a case where they do not- for purposes of this illustration, I shall skip this.)
Stage 3 : The Gemara then brings a Beraita, Mishna, or other authoritative text that seems to show that the debate only applies under the more stringent (or lenient) conditions, thus challenging the later view that views the debate more broadly.
 
 
The Gemara brings the view of the Tana Rabbi Yehuda haSabar who states explicitly that the debate refers to a case where the partitions did not reach the roof, but that if they do reach the roof, even Beis Hillel is stringent and requires an eruv contribute from each group.
[This is accepted as a proof in favor of the Amora who suggested that the dispute is limited to the more lenient case where the partitions do not reach the roof, and against the Amora who says that the dispute is limited to the more stringent case where the partitions do reach the roof.]
For our purposes, this is viewed as a proof against the first view of Rav Nachman that the debate is limited to the (more lenient) case where the room is divided by a מסיפס as we see that the debate clearly applies to the (more stringent)  case where it is divided by partitions that do not reach the roof as well.
The Gemara further suggests that it should be a proof against the second version of Rav Nachman’s opinion who says the debate applies to both a room divided by a מסיפס and by regular partitions, seeing as there is no mention of a  מסיפס  in the statement of Rabbi Yehuda haSabar, seemingly implying that in a lenient case like that, even Beis Shamai would permit one contribution for all.
Stage 4: The Gemara then answers on behalf of the later view, showing that the reason that the proof-text records the debate under the more stringent conditions is to show the   “כח”  (strength or scope) of the more lenient view in that his lenient ruling extends even to the more stringent case, and by way of קל וחומר (fortiori deduction,) obviously to the more lenient case. However, the stringent view is not necessarily limited to the more stringent case and might also extend to the more lenient case.
The Gemara answers for Rav Nachman that the reason Rabbi Yehuda haSabar discusses the case of partitions and not the case of a מסיפס is to show the scope of Beis Hillel (the more lenient view) that permits one eruv for all of them even in the case of a partition that does not reach the roof (and by קל וחומר  to the more lenient case of the מסיפס.)
However, Beis Shamai (the stringent view) might indeed also forbid this even in the case of the מסיפס (the less stringent view,) in which case Rav Nachman view that the debate applies to both cases can be upheld.
Stage 5: The Gemara then questions why, if the above argument is true, the proof-text did not rather record the debate under the more lenient conditions to show the “כח” of the more stringent view in that his stringent ruling extends even to the more lenient case, and by way of קל וחומר, obviously to the more stringent case. Then, the lenient view would not necessarily be limited to the more lenient case but could possibly extend to the more stringent case.
The Gemara then questions why, if the above argument is true, Rabbi Yehuda haSabar did not rather discuss a  מסיפס (which reaches the roof as opposed to one which does not) in order to show the כח  of Beis Shamai (the more stringent view) in that his ruling applies even to the case of a מסיפס (the more lenient case) (and by קל וחומר  to the more stringent case of the מחיצה .)
Then, the lenient view of Beis Hillel might not necessarily be limited to the more lenient case of the מסיפס but COULD well extend to the more stringent case of the מחיצה ( so long as it does not reach the roof.)
Stage 6: The Gemara answers that when given the choice which case to use to illustrated the debate, the proof-text prefers to choose the case that which shows the scope of the lenient view, rather than the case which shows the scope of the stringent view, in its words, כח דהתירא עדיף- we prefer to illustrate the scope of the lenient view over that of the stringent view.
The Gemara answers that (Seeing as either way, the כח of one view will be illustrated and the other will remain subject to doubt,) it is preferable to show the scope of the lenient view.
 
Although the precise pattern might deviate from sugya to sugya, most of  the most essential elements thereof remain similar in other sugyas where this principle is brought, for example regarding making the Bracha “Shehecheyanu” on clothes which he bought for the second time (Brachos   60a), an egg that was laid on Yom Tov (Beitza 2a), the baby of a טריפה  animal (Chullin 58a), and a double doubt  (ספק ספיקא)  regarding Niddah (Niddah 59b.)
It seems clear that this principle does not serve as blanket guidance for following a generally lenient approach to halacha, but rather illustrates the important of going as far as possible to show the full scope of a lenient opinion, at least one that is halachically authoritative.
However, if there was not some value in allowing people to be lenient, or some issue with simply advising people to be stringent, this principle nevertheless seems somewhat spurious- after all what is the urgency of showing the scope of the lenient view over the scope of the stringent view if it serves no practical purpose?
If it was simply about דרוש וקבל שכר (learning Torah for the sake of the truth and obtaining merit for it,) it should be equally important to know the precise scope of the stringent opinion!
As such, extending this principle beyond Talmudic debates to going out of one’s way to find a halachically valid lenient approach to things seems somewhat justifiable, and many poskim have indeed appeared to do so (see for example Tzemach Tzedek 103 [regarding agunos], Seridei Eish 2/4 (regarding stunning animals before slaughter during the Nazi era.)
Examining the words of Rashi (Beitza 2a,) we get some clues as to what the rational for this principle is.
“טוב לו להשמיענו כח דברי המתיר, שהוא סומך על שמועתו ואינו ירא להתיר, אבל כח האוסרין אינה ראיה, שהכל יכולין להחמיר, ואפילו בדבר המותר”
It is good for him to teach us the scope of the words of the lenient view, because he relies on his tradition and is not afraid to permit. But the scope of the prohibitors is not a proof, as anyone can be stringent, even in something that is permitted.”
This wording appears to be somewhat ambiguous (for example, is the phrase  “שהוא סומך…” referring to the lenient view or the one interpreting him) and the way we interpret it might have major ramifications as to how we understand the reasons and scope of this principle.
Other issues essential for this discussion are the question of whether this principle also applies where the halacha does not follow the lenient view (such as Beis Shamai in Beitza- see Tosfos on our daf for a starting point) and whether this principle applies even to debates regarding rabbinical laws where the default is to be lenient anyway (see צל”ח  ביצה ב.. who claims that it does not, how he explains the exception in that case, and examine whether our sugya might possibly serve as a counter example to his view [after all, eruv is rabbinical and ספק עירוב לקולא !])
I would love to continue, but its already been 5 pages, and I am way behind on the current dapim, so I leave this as a challenge for further study, and  Hashem willing, we shall get to revisit the subject next time we encounter this principle.
 
These posts are intended to raise issues and stimulate further research and discussion on contemporary topics related to the daf. They are not intended as psak halacha.

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