לזכות ר' יצחק יונה בן חנה לבריאות איתנה יחד עם בת זוגו
The Rogochover "klers the following chakira": How do we view איסורי תורה - Does the איסור take hold on the object itself or it is just a title? For example, kashrus: Do we view unkosher food as "halachic poison"? Or do we say that the object remains the same but it just has the status and title of forbidden food. The food is essentially "halachically healthy" but it has a תואר - "name" and "title" of being unkosher.
This chakira would seem to be the root of the machlokes between R' Yehuda and R' Shimon [Psachim 28a] whether chametz is forbidden after Pesach. If איסור creates "poison" then even after Pesach chometz is forbidden. How does poison become non-poison??! But if איסור is just a name or title - during Pesach it is forbidden because it is called חמץ while after Pesach it is no longer חמץ and thus מותר.
This "of course" would also explain the argument between Beis Shammai and Beis Hillel if צרת ערוה [co-wife of a forbidden woman] is permitted for yibum [Yevamos 13a]. Beis Shammai says that she is permitted while Beis Hillel says that she is forbidden. According to Beis Shammai anאיסור תורה forbids the object itself. This ערוה is like an אילונית whose צרה is permitted because the איילונית is "not even in the parsha", she is an outsider [as per the לשון הגמרא on 44a - ערוה אבראי קאי] - so too, the ערוה does not preclude her צרה from performing Yibum because she is an outsider and not in the parsha [because she is inherently forbidden]. Whereas Beis Hillel holds that איסור is just a תואר, a title but not inherent, and thus the ערוה is not an "outsider" and absolves her צרה from the obligation of yibbum.
This machlokes touches upon a basic fundamental question: Are איסורי תורה so potent that they create a reality whereby there is no connection between what is now and what was [Beis Shammai] or do we say that the original מציאות remains and the איסור תורה just creates a change in the present halachic status [Beis Hillel]. In the language of the Holy Gaon: אם דין הוי כמו הפקעה לגמרי או עדיין נשאר שם פועל עליו בזה
Beis Shammai maintains that since the law of Yibum is an outgrowth of the marriage of the brother, it is as if the original marriage created this connection between the Yavam and Yevama. Therefore, if this woman is an ערוה to him, it is as if, regarding the laws of Yibum, the original marriage never fully took place [thereby disconnecting what actually was - the marriage, and what is now - a complete "disconnect"]. In the language of the gemara - ערוה אבראי קאי - the ervah is an outsider [and doesn't affect the permissibility of the צרה to perform Yibum]. We can compare her to an איילונית who is also a complete "outsider" and doesn't affect the Yibum status of her צרה.
Beis Hillel holds that there is a difference between a case where there is a deficiency in the essential matter or person [such as an איילונית where she has no connection to the Yavam] and where the deficiency is merely legal, namely the Torah forbade the union but does not say that there is no מציאות of a connection. Thus, the ערוה does not change the reality that the original marriage took place and remains connected to the Yavam. This connection disallows a marriage between her צרה and the Yavam. The ערוה remains an "insider".
Is Torah deep or WHAT??
This understanding will shed light upon ANOTHER machlokes between Be"S and Be"H. If one divorces his wife and they then sleep together in the same inn, Beis Shammai says that they don't need a new get. Beis Hillel says that they do need a new get. The gemara [Gittin 81] explains that according to Beis Shammai we don't say that the witnesses to the yichud are also witnesses to the biah. According to Be"H we DO say that the witnesses to the yichud are the witnesses to the biah. הן הן עדי יחוד הן הן עדי ביאה. According to Rashi, Be"H understands that we have an אנן סהדי - overwhelming circumstancial evidence that testifies to the fact that when secluded, biah took place. Their years of marriage made them comfortable with each other... Be"S doesn't accept this assertion.
The Gaon learns the gemara differently. Everybody holds that we have nothing more than an אומדנא - a presumption. Be"S learns that an אומדנא is not sufficient for marriage which requires witnesses who actually create the marriage bond through their act of witnessing - עדי קיום. The divorce cut the two off completely and it is as if they were never married. That was then - this is now. The Torah cut off any connection between past and present and erased the past as if it never was. When they have yichud now it is like two strangers having yichud where there is no certainty that anything happened.
Be"H argues and says that the ex-husband still has the status of "ex- HUSBAND". Their past relationship still exists in reality He gave the get על ידו נעשה זה, עדיין שמו עליו, and that gives him a שם מגרש. Since he is still connected, in our case an אומדנא is enough and therefore he must give her a new get. The Torah law didn't completely erase the past. There is no הפקעה גמורה and עדיין נשאר שמו עליו, to paraphrase the Gaon.
How very enlightening to attempt to enter the mind of one of the greatest geniuses that the planet earth has ever hosted...
