The story of Eliyahu at Har Carmel (Melachim I 18:1-39) appears difficult. There Eliyahu, in his confrontation with the prophets of Ba’al, constructs an alter and offers a sacrifice. After the construction of the Beit Ha’Mikdash however, it was forbidden to build an alter outside the . Chazal use this as a classical case of a Hora’ at Sha’ah (a temporary annulment of a mitzvah).
Mishnah Berachot ends with the pasuk from Tehillim (119: 126), “It is the time to act for Hashem when they nullify the Torah.” Rabbi Natan swaps the two halves of the pasuk to produce the statement: “You shall nullify the Torah when it comes time to act for Hashem.” The Bartenura explains that there are times when one nullifies the words of the Torah in order to do something in Hashem’s name. There are times where we can do something that appears assur in order to achieve the higher goal of Avodat Hashem.
This principle seems strange and can be easily misinterpreted to reach illegitimate conclusions. A careful investigation into the application of the pasuk is therefore necessary. It is also odd that the principle warrants the nullification of a Torah precept (with very real halachic ramifications) based on an asmachta that almost contradicts the simple meaning of the pasuk.
The Gemara in Temurah (14b) uses this principle as the justification for writing down the Oral Torah. The Gemara there brings a beraitah telling the following story:
Rabbi Yochanan and Reish Lakish would delve into the books of Agadata on Shabbat. [They justified the recording of these Agadatot using the following pasuk] ‘When it comes time to do for Hashem then nullify the Torah.’ It would be better that the [mitzvah in the Torah] was uprooted than the Torah being forgotten from Yisrael.
Rashi comments on this point that “when the action is done in the name of Kedushat Hashem it is positive to nullify the Torah…” Based on this it would seem that when the leaders of the generation recognise a need, this principle is the vehicle through which the desperate change can be enacted.
The Rambam in Hilchot Sanhedrin (24: 4) brings this down as a Halacha applicable when the nation has sovereignty over under the Sanhedrin.
There are times where Beit Din can whip those who are not liable for whipping, and to kill those that are not liable for death, and would not transgress the law of the Torah but would rather be protecting the Torah… And there was a case where Shimon ben Shetach killed 80 people in one day in , and there was not an exhaustive investigation or warnings or clear testimony, but rather it was a Hora’at Sha’ah based on what he saw.
The need for great rabbis of a generation to have sensitivity for the circumstances they find themselves in is therefore evident.
The parameters set out for the halachic use of this concept was partly set out by Rav Yechiel Ya’acov Weinberg in his book the Sridei Eish. In Even HaEzer (78) he states:
Of course the power in this respect is given only to Chazal to decide when it is the ‘time to do’ and what we are permitted to ‘nullify’ and this is not passed to every individual to decide his own actions…
Finally Rashi’s explains that the statement of ‘nullifying the Torah’ is clearly not a permanent nullification, but is rather a one-off event to save the tradition before things return to the state of the ideal.
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