A central theme in this “Phenomenology” category of this blog is an extension of an idea from a responsum by R’ Aqiva Eiger. That extension isn’t really part of this observation, but since I’m revisiting the topic, I’m categorizing it here anyway. To save you looking up a prior post and me figuring out another way to explain RAE’s position:

Rav Aqiva Eiger (teshuvah #136) divides [the laws of cases of ignorance, how to rule when the realia of a situation isn’t known] into two types:

• ways of applying the halakhah to an uncertain situation and
• resolving what to do when the halakhah is uncertain

In other words, the doubt could be about the reality, and now we need a halakhah, or the halakhah could have once been set, but now we don’t know what it is.

Before looking at each category separately, let’s look at the problem Rabbi Aqiva Eiger was addressing. There is an oft quoted beraisa that contrasts two kinds of halachic uncertainty.

[A city has] nine stores all of which sell shechted meat, and one store that sells neveilah meat (meat killed in other ways). Someone buys from one of them, but he doesn’t know which of them he bought from. His doubt makes the meat prohibited.

But if the meat were just found, one may follow rov (the majority).

–Pesachim 9b, Kesuvos 15a, Chullin 95a, Niddah 18a

The beraisa contrasts two principles. The first is “kol qavu’ah kemechtzah al mechtzah dami” (anything that’s established is like half against half). It is specitically this rule that we There is no playing odds, a doubt is a doubt whether it’s 50:50 or 90:10. For Torahitic laws we would have to assume the stricter possibility, and for Rabbinic ones, the more lenient side.

The other rule is “kol deparish meirubah parish” (anything that leaves the group [can be assumed to have] left the majority). Here we see that majority is a deciding factor. The first case is called “qavu’ah” (established), the second “parish” (separated). How does “qadu’ah” differ from “parish“? When is majority ignored, and when is it a determining factor?

Tosafos (Zivachim 72b, “Ela amar Rava”) write “qavuah only applies to a thing that is known”.  Rabbi Aqiva Eiger explains that the piece of meat bought from the known store had an established halakhah. The buyer knew the state of the meat. We therefore call the halakhah “qavu’ah” — established. However, now it got mixed up, and we don’t know what that halakhah is.  The doubt is in the halakhah.

However, if the meat is simply found, then the uncertainty begins one step earlier. We don’t know the state of the meat. The doubt is in the reality, what part of the set this item was parish – separated from.

The same distinction appears to underly a dispute in the Yerushalmi, Nazir 8:1 (vilna ed 40a). There is a rule that in a safeiq tum’ah birshus harabim, a doubt about whether something in the public domain became tamei, we assume it’s tamei. (And a converse rule that safeiq tum’ah birshus hayachid, where a similar doubt exists about something in a private domain, we assume it’s tahor.)

This rule is tested in two cases. In the first: “נזיר שנטמא בספק רשות היחיד ואינו בפסח ר’ הושעיא רבה אמר הנזיר מגלח ר’ יוחנן אמר אין הנזיר מגלח.” A nazir may or may not have become tamei when he was in a public thoroughfare. The problem is that a nazir who is tamei has to restart his nezirus in a process that includes shaving all his hair. But, if the nazirus is intact because he didn’t become tamei, he is not permitted to cut his hair at all! Thus, neither error is “safe”; neither is simply being stringent.

R’ Hoshea Rabba says the nazir should shave his head.

R’ Yochanan says he does not.

The second case, “יחיד שנטמא בספק רשות היחיד בפסח רבי הושעיה אמר ידחה לפסח שני רבי יוחנן אמר משלחין אותו דרך רחוקה.” In the days when there is a Beis haMiqdash, a person got tamei too shortly before Pesach to being the qorban Pesach with everyone else would bring the qorban a month late on Pesach sheini. Again the Yershalmi poses a doubt in which neither assumption is a pure stringency. If we assume he is tamei and he isn’t, then he both missed the qorban Pesach and on Pesach sheini he brought a non-offering (since he wasn’t obligated) on the altar. If we assume a tamei person isn’t tamei, he would bringing the qorban Pesach in impurity.

R’ Hoshea Rabba says he waits to Pesach sheini.

R’ Yochanan tells him to avoid the problem — he should flee to a place too far from the Beis haMiqdash to be obligated to come for the qorban and thereby eligible for Pesach sheini either way.

(I couldn’t find a parallel in the Bavli. Anyone?)

As the Penei Mosheh and Qorban ha’Eidah (the acharonim on the sides of the daf) both explain, this is the underlying dispute:

R’ Hoshea Rabba holds that safeiq tum’ah bereshus hayachid renders the person tamei as if we were sure. So, the nazir is definitely a nazir tamei and must shear his hair and restart nezirus. And the person definitely is disqualified from his qorban Pesach on Pesach, and eligible for Pesach Sheini.

In contrast, R’ Yochanan considers safeiq tum’ah brh”y to be a rule for how to deal with a doubt. It is insufficient grounds to permit the nazir to cut his hair because he might be tahor and a haircut would be prohibited. So, he outwaits his nezirus, cuts his hair then, and then, in case he was tamei, starts over. Which is why R’ Yochanan also needs a way to circumvent the Pesach sheini issue. In both cases, he tells the potentially tamei person to worry about both possibilities.

I believe this is the same distinction as the one I generalized from R Aqiva Eiger:

R’ Hosheia is saying that safeiq tum’ah brh”h is a rule for dealing with doubt in facts of the ground. The halakhah established in cases of encountering maybe tum’ah, or maybe encoutering definite tum’ah, is that if one is in a public area the halachic state is tamei and in a private area, tahor. A mapping from a doubtful reality to a definite law.

Rav Yochanan holds these are rules in determining the how to act when the halakhah is unknown. We do not establish a definite law, and therefore we need to know what to presume so that we could continue acting — act stringently and assume it’s tamei if the possible contact is in a public area, and leniently when in a private one. But when neither option is more stringent than the other, as in our two cases, Rav Yochanan tells you to be stringent in both ways.