This week’s parshah discusses the halachos of a nazir. A nazir has three restrictions: he can’t become tamei, he can’t eat any derivative of grapes, and he can’t cut his hair. If a nazir does become tamei he must shave his head and start counting his days of nezirus all over again from the beginning.
Suppose there are two paths and we know that there is a dead person on one of them, but we are unsure which one. If a nazir walks down one of these paths, he doesn’t have to shave his head or restart his count. And a regular person who walks down one of these paths and then enters the Mikdash is exempt from the punishment for entering the Mikdash while tamei (Rambam Hilchos Shigagos 11:6).
We derive from the Torah’s discussion of the sotah, which is also in this week’s parshah, that a doubt concerning tumah which occurs in a place with fewer than three people should be treated as definitely tamei. If so, why in the above case – where there were fewer than three people – do we not treat the person as having become definitely tamei? Why don’t we require the nazir to start his term again and why doesn’t the regular person who enters the Mikdash receive a punishment?
Rav Chaim Soloveitchik answers these questions by examining the intention of the halacha that every doubt should be treated as definite tamei. Does the Torah want us to assume that all the details that need to be in place for something to be tamei were actually present? Or does the Torah merely want us to act as if they were present? For example, do we assume, in the case of a sotah, that the woman committed adultery and is thus forbidden to be with her husband, or is she forbidden to be with her husband even though we are unsure whether she actually committed adultery?
If we only act as if the details were present – if we only act as if the person touched a dead body but don’t assume he actually did – then we can understand why the person who enters the Mikdash (and the nazir) doesn’t receive a punishment. A person who enters the Mikdash (and a nazir) only receives a punishment if he actually touched or contracted tumah from a dead body (Rambam, Hilchos Nezirus 7:1, 7). We don’t know, though, if he actually contracted tumah. All we know is that he is definitely tamei – not because he touched a dead body, but because of the halacha that the object of a doubt concerning tumah is considered definitely tamei.
Based on this analysis, Rav Chaim explains a machlokes in Tosafos regarding whether a husband who lives with his sotah wife receives lashes. Tosafos on Yevamos 11b says that he does but Tosafos on Sotah 28a says he doesn’t since it’s only an issur. Rav Chaim explains that Tosafos on Yevamos must maintain that when the Torah tells us that a doubt is to be treated as a certainty it means that we know all the necessary details for the object to be tamei were present. Therefore, we can say with certainty that the wife was mezaneh and thus the husband may not live with her. If he does, the offense is punishable by lashes.
However, Tosafos on Sotah who writes that that he does not receive lashes must maintain that we do not assume that anything actually occurred. We merely act as if it occurred. Therefore, only an assei prohibits the husband from living with his wife while her status as an adulteress is in doubt (i.e., until she drinks the waters).