Do Forbidden Acts Become OK If You Do Them Weirdly Enough? - Episode 25

Rav Avi: Welcome to Responsa Radio, where you ask and we answer questions of Jewish law in modern times. I am Rabbi Avi Killip, I'm here with Rabbi Ethan Tucker, Rosh Yeshiva at Mechon Hadar, a center for higher Jewish learning based in New York City. Hi! How are you?

Rav Eitan: Alright, always a pleasure to be here with you.

Rav Avi: So here's a question about shabbat, and unusual behavior on shabbat. Questioner writes: "I have seen some people in my community, usually someone with a stroller, push the elevator button with their elbow on shabbat. I assume this is related to the concept of shinui for actions on shabbat. What is shinui, what are the types of activities that can be performed in this different way, and by whom?" So, start us out with the definition of this Hebrew word shinui or difference, and what is it doing in our shabbat laws?

Rav Eitan: Okay. So shinui just means a change, right? Doing something in an unusual manner. And it has a really interesting history. And in many ways, it starts with the elbow, surprisingly enough. And hopefully by the end of this we can make some sense of what is a super odd scene to someone who is less familiar with it than the questioner. There's a whole bunch of texts that discuss shabbat in the Mishnah, in other parallel sources, that try to kind of define, well, you know, when I do an action in a certain way, it's full-blown violation of shabbat, if the Temple were standing and I did it by mistake I'd have to bring a sacrifice, and I would be, you know, culpable in a serious way if a court were enforcing those restrictions.

But then there might be other ways that are kind of non-standard ways of doing it that wouldn't kind of meet the technical requirements. I mean, think in some ways of getting off on a technicality because things didn't exactly procedurally align -- it doesn't mean we think the person behaved in a perfectly fine fashion, but you can't really bring them up on that charge, right? So you have a number of sources that discuss that. You know, a classic example of that will be, you know, yeah, writing's not allowed on shabbat, but, you know, writing really is about writing two letters or more, because two letters is the shortest possible Hebrew word, is two letters. And if you, you know, write one letter, well, of course that's not okay, but have you really done a meaningful act of writing? No. So you'll be patur, you'll be exempt from kind of more serious consequences.

Rav Avi: So doing it differently here is really more about doing less than the full activity?

Rav Eitan: So that's not an example of a shinui; that's just about kind of doing less. Where you get to this sort of notion of, well, maybe I did the same thing differently comes up in a number of areas.

So here's a couple examples: carrying things from a private domain to a public domain. We had some exploration of the eiruv in a previous podcast that we did, and the laws of carrying. If you take something in the normal way, like in your pocket, in your hand, that people carry things, that's what it means to violate that melakhah, that restriction on physical activity on shabbat. But the Mishnah says, what if you carry something out on the back of your hand? Or, what if you carry it on your elbow? Or you carry it with your ear, or somehow in your hair? In some way that is unusual -- those kinds of actions, says the Mishnah, you are patur, you have not actually violated shabbat in a core way. You didn't take the object out in the normal way that it's done. Other examples of this include writing with a pen, let's say, in the crick of your arm, with your elbow, writing with your foot, right, in a way that is unusual -- that also won't qualify as a full-blown violation.

And these changes here, I want to emphasize two things about them. One: they're not about saying anything's permitted -- like, this is still all forbidden to do all this, but they're saying when we define what's a sort of full measure of violation here, these don't quite cut it. The other piece that's important here is the sense in which these actions are different seems to be related to the physical significance of what happened, and on some level the efficiency of getting it done. Right? Like, taking things out on your elbow and writing with your foot, these are not just different ways of doing it; they're much less effective ways of doing it, and even if at the end of the day you got the object from inside to outside, it was not in any way a kind of normal, physically significant action in the way that you did it.

Rav Avi: Well, so two observations that strike me. One is that somehow the whole idea of getting around it or making these special exemptions feels so modern to me. It's striking that this is the Mishnah, this really goes all the way back to the beginning. It's just a powerful thing to remember, I think, when I'm watching that person press the elevator button with their elbow. And the second observation I would make is similar, perhaps, to your second point, that they seem very physical. They actually have to do with the body of the person who's doing this action, as opposed to just psychological changes or, you know, several steps of separation. It's not about having the elevator be different; it's about the way I use my physical body.

Rav Eitan: A hundred percent, it's very much about how I act, and again, I think in the case of writing, it's also very clearly the result will be a less good result. Now, let's be clear: we haven't yet gotten to any justification for the elevator button or anything else as an active recommendation for how to behave. Everything in these lists is forbidden; it's just more forbidden or less forbidden. But what it does crack open is the idea that once you do something in this sort of dramatically different way, you are no longer playing with a Biblical-level prohibition. Or at least one that's sort of enforceable on the highest level. And that seems to begin to open up some possibility for exploring maybe cases where you might be lenient.

You have a couple other weird examples of this -- one particularly gross example is talking about a kohen, a priest in the Temple, who has a wart on his skin, and basically needs to remove it in order to be able to do the service in the Temple in a proper way, and it's shabbat, and how can he remove the wart, because it would seem that removing that piece of skin is somehow forbidden? And the Tosefta actually says, well, if he's in that situation, his friend can bite it off, but he can't actually, G-d forbid, use a tool to actually snip it. Now, I warned you, it's a really gross example. But it's a sort of graphic example of that act of biting is clearly getting at some way of don't do this in the normal way with an instrument; it's not clear, quite frankly, from that text alone, is the concern about doing it in a different way, or is the concern about not using a tool? And we have all different allergies to tools more broadly on shabbat. It may or may not be a good basis for sort of broader thinking about actively using a shinui, this kind of difference, but there's another text which really goes directly there.

And this is a text in the Talmud in Ketubot, which talks about a character which is described as goneakh, which the commentators seem to understand as having -- I mean, they describe it almost as having a heart sickness, a heart malady, something is, like, really bothering them -- and apparently one of the main, if not sole cures for such a person, is that they would drink the freshly milked milk of an animal. Like, that comes right out of the animal at that moment.

The problem is, that is a Biblical violation to milk an animal on shabbat, it's understood when you categorize it as mefarek, as actually the act of breaking something apart -- here you've got this animal that's containing milk, and you're kind of extracting the milk from the animal -- and that's understood to be a Biblical violation of shabbat. But the text here in the Talmud says, but if the person who's suffering from this illness -- here's another yuck factor -- goes straight up and suckles directly from the animal, that is okay. And the Talmud says, well, why is that okay? Because this person is basically doing the action of milking the animal in a backhanded, unusual fashion, ki li'achar yad, that downgrades it to a rabbinic prohibition, and in a place where someone is experiencing pain, the rabbis don't stand by their decrees, and they let them be waived. This seems to open up more of the possibility of a paradigm of oh, if someone's in pain, suffering discomfort, and the thing that will relieve their discomfort is a Biblical-level prohibition, you could do that Biblical-level prohibition in an unusual way, thus downgrading it to a rabbinic one, and thereby enable them to benefit from that action.

I think the big question with this source is, how much of a precedent is it? So, some interpreters of this text will say, no no no, there's something very specific about this case where there's no way to relieve the person's pain, other than getting this animal and getting the milk straight out, and therefore since that's the only way here, we allow the shinui, but don't take this as a paradigm of oh, any time there's a rabbinic prohibition, you know, or any time there's even a Biblical prohibition and you can downgrade it by doing a shinui, that's no problem if it'll relieve some discomfort. There might be something distinctive about the goneakh, this particular figure, and then there's others who clearly say no, that's what this text means. It means anyone, anytime someone is in a significant state of bodily illness on shabbat or weakness, you're actually allowed to do these kind of actions with some kind of shinui.

Rav Avi: So that brings us back from the it's less bad but still forbidden into a it's even actually permitted.

Rav Eitan: Yeah. And that's the real thing that this text sort of takes us to the other side of. And what you have then later in a lot of the medieval discussions around shabbat and dealing with ill people is how far do we take this text? And the Shulkhan Arukh actually prefers an approach which marginalizes this text somewhat, and says no no no, the Talmud elsewhere says when you wanna do a full-blown melakhah to help someone who's ill, you gotta get a gentile involved in the picture, and otherwise their life's not in danger, it's not justified. You know where we'll accept a shinui? We'll accept it on a rabbinic prohibition. We will allow, when the prohibition itself is only rabbinic, well then, if I do a shinui, some kind of modification of this in the context of a rabbinic law, then already I can be lenient if there's some kind of pain at stake. And others who come back more boldly insist, no no no, that text means what it says, and it should be generalized -- maybe if there's a gentile available, you should prefer that, but otherwise where that's not possible, surely you're allowed to do this in this kind of unusual manner.

I want to emphasize, though, that this text still is fundamentally engaging shinui, doing something in an unusual manner, as actually having an effect on the sort of effectiveness of the action itself. I feel pretty confident, even though I've never done it myself, saying that suckling directly from the animal will be a less effective, much less pleasant, normal way of actually getting that milk than milking the animal and putting it into the bucket. It may do the job in terms of the therapeutic effects here, but you're really, in keeping with the way all those earlier sources talked about it, kind of doing a different action; you're not just doing it in a strange way. It's really gonna end up being something that's very different. There's another dimension that gets introduced in the Talmud, where shinui plays a role. And that is in the context of actions that we fundamentally think are permitted, but we don't want people to experience the justified violation of shabbat where the justified activity of, let's say, preparing certain kinds of foods on Yom Tov, as being totally neutral and commonplace.

So you have one statement where it's like, you know, you're doing things to prepare on Yom Tov, let's say, to get spices ready and other things -- well, we might have formal rulings that stuff that's normally not allowed on shabbat is allowed on Yom Tov, if you can do it in an usual, different fashion, you should. Similarly in the context of violating shabbat, even in order to save someone's life, there's a strong line of precedent that says, well, actually, if you can save the person's life just as effectively and do the thing in an usual way, you should do that. There's a value to inserting shinui even where we think it's permissible to do the action -- seemingly, it's not stated explicitly, but seemingly for fear that you will come to experience this violation of shabbat as normal.

Rav Avi: So it seems like this shinui has psychological benefits, that the point of it is to help remind you that this is still a different time.

Rav Eitan: Yeah. I think that's the way you have to understand it. And in that sense, the shinui is actually completely meaningless to altering the actual weight of the prohibition or the actual guidelines for how one should behave. It's saying you're totally justified in doing this thing, but the shinui is to remind you you're doing something unusual here. This is a kind of supersession of the normal rules, and don't you forget it.

Rav Avi: Could you give us an example of that?

Rav Eitan: Yeah. Here's an example of that. The Talmud talks about someone who forgets bread in the oven going into the onset of shabbat.

Rav Avi: Who hasn't done that?

Rav Eitan: Yes, we've definitely all done that. Though in our life, the way we do that is we have it in an oven on a tray and you take the tray out and there's not so much of a problem. Back then, the way they would bake bread and pitot is they would actually stick them to the sides of the oven. And one of the things that's forbidden to do on shabbat is to scrape bread off the side of the oven with a special scraping tool. And so this person who forgot it is now in this dilemma where they got this bread that they baked for shabbat, that's what they're gonna use for their main meals, but how are they supposed to get it off? And so the weighing on that comes out that there's a ruling that says you're allowed to take out enough bread for the three meals of shabbat, so you take out the minimum amount that, you know, you're required basically to eat over the course of the day. But when you take it off, take it off with a knife as opposed to the normal tool used to scrape it off.

Now that's an example where it's very clear the act of scraping it off is forbidden, and that is being superseded because of the need to allow you to have this bread. And we're not really saying that it's not allowed to take the bread off, but since there's a way of doing it that will kind of remind you this is an unusual dispensation that you are being granted, you should do it that way as opposed to a way that you may experience of, oh, remember that time I scraped the bread off the oven with the scraper, nothing happened, it wasn't so bad? And that sense of taboo around that will weaken for you. So that's one example among several where it comes up.

Rav Avi: That's helpful.

Rav Eitan: Now there's one other way in which shinui comes into play, and particularly there's one interesting discussion in the Talmud where they're talking about the permissibility of taking roasted grains and mixing them either with water or vinegar to create some kind of porridge or cereal mixture on shabbat. And there are some authorities who are quoted as saying that's totally fine to do for human consumption, and others who say no, that's totally forbidden, that's almost like making dough on shabbat. It's mixing liquids and solids into a paste in a way that's forbidden. And you've got this debate, and then you have rabbis who come along and say it's permitted but you should do it with a shinui, in an unusual way. You should either mix it kind of slowly or shake it up in the bowl as opposed to actually using a tool. That's a different case of shinui, where I think what's really going on there is trying to blunt the force of taking sides in a debate. Where you basically say, look, we kind of think like the permissive view in this debate, but we don't want to just outright crush the stringent view, so I'll do it in an unusual way to acknowledge that there's a more strict way of thinking about this, even though I think about this leniently.

Rav Avi: I like that, I think that's helpful. I could see adopting that in my own practice.

Rav Eitan: Yeah. So, going back, I guess, to the elevator question, I would say my own approach to shinui is to think about primarily as a kind of distancing and mitigating overlay onto an activity that you've already decided is basically permitted. That is to say, using shinui just as a way to get out of stuff or, well, that downgrades this to a lower-level prohibition, that feels like a certain kind of game-playing that's not actually authentic to where it emerged from the sources. You should either use it, I think, because there's a lenient view that you, you know, permits in that case, and even if it's not what's conventionally followed, this is a way of sort of acknowledging that the stringent view still holds some sway, or because there's some pressing, passing need that is an unusual circumstance, and this helps remind you this is not the way I normally do it.

So the way I would process the case of, you know, the pregnant woman or the person with the stroller going up in the elevator on shabbat and using their elbow to hit the button, I would think about it one of two ways. Either, if that person really thinks that taking the elevator is completely forbidden on shabbat and basically the only way you would normally do a thing like that in its normal fashion would be to save someone's life, the elbow seems like an insufficient step away from that to warrant doing it for the discomfort of walking up five to nine flights of stairs. However, if what you think, which seems reasonably compelling to me, which is that the elevator itself is either only rabbinically forbidden or perhaps even basically should be permitted form of kind of thinking about the use of electricity to do something that's not really a melakhah in and of itself, and eh, the light going off on the button is an incidental, unintentional consequence of doing that, but for all kinds of reasons we don't normally practice that way, certainly I don't normally practice that way -- you would say, okay, but in this circumstance, where there's this tza'ar and potential discomfort on the line, the use of my elbow will basically be a reminder of, look, I kind of think that there might be a compelling case for saying that an elevator is okay on shabbat. I don't normally do that.

When I feel there's some pressing need to do it, doing it with a shinui is a way of saying I'm not just following that lenient read of the situation, but I'm acknowledging it's intrinsically somehow more complex than a garden-variety melakhah, which might be black-and-white forbidden.

Rav Avi: It sounds like there's also maybe even a third option that you described at the end for us, which is someone who just simply says I use electricity on shabbat, but I'm using my elbow to call the elevator as a way of reminding myself that this is shabbat and that there are other people who don't use electricity on shabbat, and sort of a head nod to that position.

Rav Eitan: Right. Or you can imagine shinui being used in that way in some sort of optical public space, you know -- I don't want people to think I just treat this activity lightly, even if I have a lenient opinion about it. I think that's tricky, because people don't always necessarily see, of course, with an elevator I think it's very clear, like, what people see is you getting in and out, not really how you push the buttons. So I don't know if it'll help your optical case in that context. I will also say, I haven't really seen, though maybe there are cases that I'm not aware of, shinui used that way in its sort of classical form. But you're right that some of the sort of balancing between different position, maybe that is the right way to understand the porridge case, is that there's a way in which the desire for shinui there is out of respect to that other opinion.

So I guess what you're getting from me as a bottom line is, I think a game-playing version of shinui that is using it to evade prohibitions feels off to me. However, the use of shinui in some ways as a stringency, if you will, not as a way of downgrading but as a way of saying this is a circumstance where it actually feels pretty clear to me that some leniency would be warranted, but I don't like the broad implications of being lenient here. So in this ad hoc case I will use it -- that actually strikes me as potentially a very healthy balancing of different approaches to a given situation.

Rav Avi: So that helps us understand shinui not as a way of getting out of what we do on shabbat, but as one of many things that we can think about when we're trying to sanctify the day and create something special and holy.