In today’s post I would like to report to you on an Asvan De-oraysa from Reb Yosef Engle zl. He cites the Ramah in the laws of tzitzis who comments to the effect that the fact notwithstanding that, although women are not obligated in tzitzis owing to the fact that it is a time-dependent positive mitzvah, they are nevertheless permitted to don a tzitzis-bearing garment and recite a blessing upon the mitzvah, if they should so desire, and are deemed non-commanded doers of a mitzvah in so doing; nevertheless it remains improper for them to do so, inasmuch as it gives the appearance of taking on airs, which is categorically frowned upon. The Ramah buttresses his contention by pointing out that even a man is not required to wear tzitzis unless he freely chooses to don a four-cornered garment. So much for what the Ramah says. The Asvan De-oraysa seeks to take issue with the Ramah’s position that it is only on account of the fact that it is unjustifiably taking on airs that a woman is counseled not to don a talis outfitted with tzitzis. The Asvan De-oraysa wants to argue that no fulfillment of the command to wear tzitzis accrues to the woman who garbs herself in a talis to which are affixed tzitzis, at all; and that therefore this woman would be prohibited from reciting a beracha on garbing herself thusly. That no command is fulfilled by such a woman is, he wants to say, an outcome of the fact, cited by the Ramah, that the mitzvah of tzitzis is never a direct, categorical obligation on a person, even when the person is a man.
He sets out to develop a proof to the effect that a woman’s wearing a talis with tzitzis attached counts for nothing at all. His starting point is a Minchas Chinuch who comments on a Tosefos in Suka, which asks why lecha is needed to disqualify of stolen suka. Let a stolen suka be disqualified (invalidated) by dint of the fact that it is a mitzvah haba be-aveira (hereafter mhb)! To this, the Minchas Chinuch offers a striking reply that runs along the following lines. There are, he says, two kinds of positive commands (mitzvos). One kind is such that performance of the specified act is intrinsically sought. Examples abound and include such mitzvos as tefilin, lulav, etc. The other kind, by contrast, is such that the specified act is not intrinsically sought. It is merely instrumentally needed as a means of preventing a prohibited state of affairs from arising. Thus consider suka: the obligation to eat in a suka is not intrinsically sought. For had it been intrinsically sought, it would not have been left to a person’s discretion whether to partake of food and incur the obligation or not to and not incur the obligation. The obligation would have been imposed categorically and not conditionally (or contingently). As it is, a person is free not to eat at all, if he so chooses; he is imposed upon neither to eat nor, a fortiori, to do eating in a suka. The mitzvah merely states that, should he voluntarily decide to partake of food and to eat, then he should do his eating in the suka. What this means is that the performance of the act – in this instance, the act of eating in a suka – is not intrinsically sought. It arises, rather, from a need to prevent a state of affairs from arising in which the person is eating outside the suka – which is undesired. So explains the Minchas Chinuch.
With this as background, we come to the explication of the principle that one does not fulfill a mhb. The Minchas Chinuch’s first step in delineating it is to disabuse us of the spurious notion that mhb invalidates the object with which we seek to perform a mitzvah – the case in point being a suka whose acquisition has been effected by unlawful means – thus rendering the act performed by using this object unqualified. Not so, he says: the impact of mhb is not at all analogous to that, say, of a (disqualifyingly) broken lulav, where the object is rendered invalid and therefore makes it so that an act performed by its use fails to meet the requirements of the command to perform an act using the object in question. But if this is not the operative mechanism behind mhb, then what is?
Lurking behind the Minchas Chinuch’s explanation is the following understanding. There are three things of which we need to be cognizant in considering the matter. There is, first, the object with which a mitzvah is performed. It must meet the defined specifications, if the act performed by its means is to qualify as fulfilling the designated mitzvah. (Thus, for example, a lulav must not be broken if it is to qualify.) Next, there is the performance of the act itself to consider. It must meet the necessary criteria. (A big part of what makes it a proper performance is that fact that it is performed using an object of the requisite kind.) Finally, there is still another element: it is this. The act – as fully qualified in itself – needs, further, to be accepted in fulfillment of the command. It needs to be suited for acceptance – which is to say that it needs to be deemed acceptable. It is, says the Minchas Chinuch, in regard to this last aspect that mhb enters as a desideratum.
An object’s having arisen by way of an aveira (sin, transgression) does nothing to thwart the object’s inherent validity or to impugn the integrity of an act in which it is playing a part. That is to say, it affects neither of the first two aspects of the completion of a mitzvah. The object’s having been acquired, or brought into being, through illicit means interferes, merely, with the ability of a performance that draws on it to bring about the requisite acceptance. Apart from this, however, its status as a mitzvah-object, capable of being used to discharge one’s obligation, remains intact.
Working with this understanding, the Minchas Chinuch infers that the principle of mhb applies only to the first of the two categories of positive command – that in which an action is intrinsically sought. It does not, however, apply to the second category. For only where the first category is concerned does acceptability enter as a desideratum. But where the sole purpose of a commanded act is to avert a circumstance in which something undesired is performed (for example, to prevent a state of affairs in which someone is eating outside the suka from arising), the act, considered in itself, is not something whose performance is sought. It is merely a means of obviating something repugnant. The issue, therefore, of this act’s acceptability never rises to the fore. This being so, there is nothing for the fact that the object with which the mitzvah is being performed originated in sin to infect and render ineffectual. All that remains to consider is the integrity of the performance of the act per se; and this, as noted, is not something that mhb can impinge on. This, then, is why lecha is needed to disqualify a stolen suka. Without lecha, mhb would be powerless to disqualify the performance.
So much for the Minchas Chinuch.
At this point, the Asvan De-oraysa steps up and seeks to adapt the Minchas Chinuch’s logic (as regards the inapplicability of mhb to non-categorical mitzvos) to the case of a mitzvah performed by someone who is not commanded (e.g., a woman in regard to time-sensitive mitzvos), in an ingenious way. The question his reasoning addresses is: why should someone not obligated in a mitzvah nevertheless be able to fulfill the mitzvah (by performing it)? His argument is that someone not commanded – such as a woman in regard to a time-dependent mitzvah – is able to attain fulfillment of the particular mitzvah only where it comes from the class of mitzvos whose performance is intrinsically sought. For there the element of acceptance enters as a desideratum; and a woman is able to achieve acceptance by exercising her free volition in fulfilling the command, despite not having been commanded. In other words, the element of acceptance provides a wedge with whose help a non-commanded person may enter. On the other hand, where the element of acceptance is absent – as it is in regard to mitzvos whose performance is merely instrumentally sought – an exempted person has nothing to latch onto in attempting to fulfill the mitzvah.
The very idea of fulfilling a mitzvah is, in that case, somewhat attenuated; what is really implicated is the negative idea of advertence. But someone not commanded is not someone whose abstinence averts a proscribed state of affairs. So given her exempt status, a woman can, in relation to time-sensitive commands, do nothing to advance the cause of avoidance. Her eating outside of a suka is not undesired; consequently, her eating inside one does nothing to avert an undesired state of affairs. It is entirely ineffectual. To put it starkly, her eating outside a suka is as good as her eating inside one; the situation is entirely indifferent to it. Ergo: her performance cannot constitute a fulfillment of the command.
Now, considering that, as the Ramah indicates, tzitzis falls into the classification of instrumental, conditional commands, owing to the fact that the individual is not imposed upon to don a garment of the appropriate kind but, rather, to wear tzitzis if he independently decides to don such a garment, it follows that a woman, who is totally non-commanded in regard to this mitzvah, would fail to fulfill the mitzvah, should she voluntarily act to perform it, and that therefore she should certainly not recite a beracha in conjunction with her act.
The Asvan De-oraysa buttresses his reasoning by drawing on a Tosefos in Kidushin, which suggests that, if it were not for the presence of a pasuk expressly disqualifying women from performing certain of the services associated with bringing a korban (animal sacrifice), the fact alone that the service of a korban requires being accoutered in the priestly garments and women are not permitted to wear those garments would not suffice to clinch the issue in favor of their not performing the service – the reason being, the very state of affairs whereby women are not commanded to wear the priestly garments guarantees that, in failing to wear them, they are not lacking them. Where there is no requirement there is no lack, resulting from failure to abide by the requirement. But if they are not lacking them, then their not being accoutered in them would per se be no obstacle to their performing the service (for it would be as if they were wearing them!) – but for the explicit pasuk, disqualifying them.
The Asvan De-oraysa concludeds that, mutatis mutandis, the same holds for a woman’s donning tzitzis. Since the mitzvah of tzitzis is not positive, in the sense of enjoining the person to wear a garment requiring it, but rather negative, in the sense that, once worn, the garment should not be lacking in tzitzis; and, further, since, given her exempt status, a woman’s failure to affix tzitzis to her garment cannot constitute a lack with respect to the garment she wears; it follows that when she does affix tzitzis to the garment she wears she accomplishes nothing at all, as far as fulfilling the mitzvah is concerned. The Asvan De-oraysa goes so far as to express himself by saying that a woman’s not wearing tzitzis (on the four-cornered garment she is wearing) is exactly the same as her wearing tzitzis. It is as if she were wearing tzitzis! And to support this, he cites the Gemara in Avoda Zara that says that, the fact notwithstanding that we derive from a pasuk that someone uncircumcised is unfit to perform circumcision, a woman is, nevertheless, qualified to do a circumcision, because she is as if she actually were circumcised. The Asvan De-oraysa interprets this as meaning that, since a woman is not in the kind of physical state that circumcision is meant to extricate a person from, she is accounted as actually being circumcised. That circumcision has not physically been performed on her does not detract from her status in this regard.
Similarly, by the very fact that she is exempt, a woman is not lacking tzitzis when the garment she wears is not adorned with them. But if she is not lacking them, it is exactly the same as if she were actually wearing them! Consequently, it is impossible for her to fulfill the mitzvah – by physically wearing them. They add nothing to her initial condition at all.
After some additional dialectical treatment of the topic, the Asvan De-oraysa considers the possibility that, by the forgoing reasoning, a woman should not be allowed to recite a beracha on sitting in a suka either, given that one is not required to eat in a suka but, only, to eat in a suka if one decides independently that one wants to eat. Suka is not a mitzvah whose fulfillment is intrinsically sought but only instrumentally so. Consequently, it shouldn’t be possible for her to fulfill the mitzvah! But he demurs, explaining that the situation with suka is importantly different from that of tzitzis. For in the case of suka, it is not the case that the mitzvah to eat in it is contingent on the realization of a prior condition: namely, the formation of an intention to eat. Rather, the mitzvah of suka is teishvu ke-ein taduru.
This means that the mitzvah is to live in a suka in precisely the manner in which one ordinarily lives in a home. Now, living at home is not about staying indoors all of the time. It consigns certain kinds of activity to indoor conduction, while countenancing other activity types as belonging to the outdoors. Neither does it demand that activities whose place is in the home actually be engaged in (in the home). It leaves it to the home-dweller’s discretion whether to engage in activity – such as eating and sleeping – whose place is in the home, or not to. All this is discretional. What is positively expected is merely that any activity whose place is the home will, if engaged in at all, be conducted in the home. And, says the Asvan De-oraysa, since suka life is meant to simulate home life, the suka dweller is entitled to the same exercise of discretion as he enjoys when living in his home. This is part and parcel of the fulfillment of the obligation to settle in a suka. It is teishvu ke-ein taduru.
Accordingly, there is nothing conditional about the mitzvah of suka. Far from being contingent and conditional, it is categorical. It demands that one conduct oneself as if living at home all throughout. Fulfilling this imperative, though, allows ample scope for deciding for oneself if and when one wants to eat and sleep. But when one eats and sleeps, one had better do it in the suka. This being so, a woman is quite capable of fulfilling the command as a non-commanded doer of the mitzvah. As such, she very well makes a beracha.
By taking this stance, the Asvan De-oraysa has distanced himself from the position taken by the Minchas Chinuch to the effect that suka constitutes an instrumental type of mitzvah and has only conditional (not categorical) force. Consequently, the Asvan De-oraysa is likewise deprived of the possibility of availing himself of the Minchas Chinuch’s answer to the Tosefos’ question about mhb in relation to a stolen suka. Evidently, this is a price he is willing to pay. May all be well upon us and all of Israel.
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