TB Yevamot dappim 4-5 proved that a positive commandment comes and overrides a negative prohibition (אָתֵי עֲשֵׂה וְדָחֵי לֹא תַעֲשֶׂה) because of proximity of verses (semukhim-סְמוּכִים ). TB Yevamot 6-7 (and truth be told this sugiyah continues to the top of daf 8) wonders whether this principle applies even in the more severe case where the negative prohibition carries with it the penalty of karet (כָּרֵת). Karet can either mean dying young (before the age of 50 or 60), dying without children, or the soul being spiritually "cut off" from your people after death. The first Mishna in massekhet Karet enumerates 34 different prohibitions that carry the penalty of karet. One of the sins punishable by karet is having a relationship prohibited with a forbidden relative.
If a man is permitted to marry his dead brother’s wife even though she is a prohibited relative because of the positive commandment of a levirate marriage (יִבּוּם), perhaps he is permitted to marry his dead brother’s wife even if she is prohibited to him because of another forbidden relationship. Here is an example of such a case. A man marries his brother’s daughter and then dies without a child. Perhaps the principal that a positive commandment comes in overrides a negative prohibition would allow the man to marry his daughter. (Spoiler alert: he is not permitted to do so)
The
first attempt to find the source whether this principle applies in a case where
a court may execute a convicted person, a positive commandment, even on
Shabbat, which would be a violation.
“A student said in the name of
Rabbi Yishmael that since it is stated: “And if a man has committed a sin worthy of
death, and he is put to death” (Deuteronomy 21:22), I would derive
that the death penalty is administered whether on a weekday or on a
Shabbat. And how do I establish the verse: “And you shall keep Shabbat, for
it is sacred to you; every one who profanes it shall surely be put to death”
(Exodus 31:14)? This verse applies to other prohibited labors, except
for court-imposed capital punishment, which must be administered even on
Shabbat. Or perhaps it is only the case that even
court-imposed capital punishment is included in the list of prohibited
labors on Shabbat. How, then, do I establish the verse: “And
he is put to death”? This is referring to a weekday and not to Shabbat.
“Surprisingly, the tanna reverts
back to his earlier claim: Or perhaps it is only the case that
capital punishments may be administered even on Shabbat? Therefore, the
verse states by way of a verbal analogy: “You shall kindle no fire
throughout your habitations on Shabbat day” (Exodus 35:3) and below it
says, at the end of the chapter dealing with murderers: “And these
things shall be for you a statute of judgment to you throughout your
generations in all your habitations” (Numbers 35:29).
“Just as the term “habitations” stated
below, in Numbers, means in the court, where judgment is performed, so
too, the term “habitations” stated here means in the court,
i.e., in the place where judges preside. And the Merciful One states in
the Torah: “You shall kindle no fire.” Since one of the court-imposed death
penalties is burning, which is performed by kindling fire, then evidently,
court-imposed death penalties do not override Shabbat.” (Sefaria.org translation)
Then the Gemara tries to deduce the
source of this principle with a kal
vekhmer, an a fortiori argument. But just like the above this argument which
can either prove that the positive commandment overrides the negative prohibition
or just the opposite the Gemara resets the question because of a lack of
definite proof.
“Consequently, the Gemara suggests a different interpretation. The superfluous phrase “with her”[1] (indeed teaches that the obligation of levirate marriage does not override the prohibition with regard to women with whom relations are forbidden. However, this derivation is required not because one might have thought that a positive mitzva supersedes a prohibition that incurs karet.” (Sefaria.org translation) the case of the levirate marriage would be the exception to the rule.
Before the introductory Psalms in the morning
service, the traditional siddur contains the 13 interpretive principles of
Rabbi Ishmael. We are most familiar with the first two, a kal vekhomer (קַל וְחֹמֶר-an inference from a lenient law to a
strict one, and vice a versa) and a gezarah shava (גְזֵרָה שָׁוָה-an inference drawn from identical words into passages) The
Gemara sees whether rule number eight: “when a particular case, already
included in the general statement, is expressly mentioned to teach something
new, that special provision applies to all other cases included in the general
statement.” or rule number 11 “when a particular case, the included in the
general statement, is explicitly mentioned with the new provision, the terms of
the general statement no longer apply to it, unless Scripture indicates explicitly
that they do apply.” is the source that a positive commandment overrides the
negative prohibition and unless explicitly excluded by the Torah.
Stay
tuned for tomorrow to see how the sugiyah
goes on.
[1] The baraita explains: Since it
is stated with regard to the wife of a deceased brother: “Her
brother-in-law will have intercourse with her” (Deuteronomy 25:5), I
would derive that when the verse speaks of the mitzva of levirate
marriage, it includes even any one of those with whom relations are
forbidden, as mentioned in the Torah. Therefore, one derives a
verbal analogy: It is stated here, with regard to a wife’s sister: “With
her,” and it is stated there, with regard to a levirate marriage: “With
her.”
“The baraita explains the verbal
analogy. Just as there, a levirate marriage involves the performance
of a mitzva, so too, here, the statement “uncover her nakedness with her”
includes the performance of a mitzva, and the Merciful One states in the
Torah: “You shall not take.” The phrase “with her” teaches that even in
a case where there is an obligation of levirate marriage, the Torah prohibition
proscribing forbidden relatives remains in force. (daf 3b, Sefaria.org translation)
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