Halakhic Thought – 5783 – Lesson 10

Table of Contents

• The duality of the king’s law and halakhic law
• Conflict versus contradiction between different aspects
• The independence of morality and Jewish law, and examples from the Maharal on returning lost property
• Homosexuality: a halakhic prohibition without a moral problem
• “Abomination” in Nedarim and how to read the term
• Criticism of crusades and of public inconsistency
• The beautiful captive woman and Rabbi Karim: halakhic permission versus moral prohibition
• Changing moral norms versus the fixed nature of halakhic permission
• Democratic positions alongside commitment to Jewish law
• Criticism of secular and religious reactions, and of Israel Shahak
• A transgression for its own sake: Yael and Lot’s daughters, and extra-halakhic considerations
• Institutionalizing prostitution and annulment of marriage: considerations of social character and norm
• “The fifth section of the Shulchan Arukh” and non-formal considerations
• Deciding conflicts: Sartre, intuition, and the measure of the good
• Incidental clash versus essential clash
• Criminal law, a halakhic state, coercion in matters of belief, and prior warning

Summary

General Overview

The lecturer wants to wrap up the topic of morality and move in an orderly way into the question of authority, with the central claim that there is a normative duality between the king’s law and halakhic law—not only as systems, but as purposes. The king’s law is aimed at proper, moral social life, while halakhic law is aimed at bringing about the Divine Presence and at religious goals. He argues that morality and Jewish law are independent categories, and therefore the same act can be halakhically required while morally forbidden, and vice versa, and that a practical conflict is not a principled contradiction. He illustrates this through contemporary disputes and various halakhic examples, and argues that there are situations in which extra-halakhic considerations can prevail, while in essential clashes the Torah itself decides in favor of the halakhic value.

The Duality of the King’s Law and Halakhic Law

The lecturer states that there is a duality between the king’s law and halakhic law, and that this duality reflects a duality of purposes and values. He defines the king’s system as aimed at proper social life and morality, and the law of the Torah as aimed at bringing about the Divine Presence and at religious goals. He argues that these goals do not depend on one another, and that the two systems do not “speak” to one another.

Conflict Versus Contradiction Between Different Aspects

The lecturer illustrates that there is no contradiction between different aspects by using the example of chocolate, where “it’s both fattening and tasty,” so two judgments can both be true at the same time. He defines conflict as a practical dilemma in which one has to decide what takes precedence, without any principled problem in the fact that there is a clash. He adds that even within morality itself there are conflicts between values, and that there can also be a clash between self-interest and morality that is not a contradiction.

The Independence of Morality and Jewish Law, and Examples from the Maharal on Returning Lost Property

The lecturer argues that Jewish law and morality are two different, independent categories, and therefore it is possible that regarding the same act, Jewish law would obligate while morality would forbid, and vice versa. He cites the Maharal, in Be’er HaGolah, with two examples from the laws of returning lost property that show halakhic stringency over against morality, and moral stringency over against Jewish law. He describes a situation in which Jewish law requires that the item “remain lying until Elijah comes” when a lost object with identifying marks was found before the owner despaired of recovering it, even if many years have passed, whereas morality would suggest that one should make use of valuable property and not leave it unused. And he describes a situation in which Jewish law permits taking a lost object that was picked up after the owner had despaired, whereas morality requires returning it when the owner gives identifying marks, because “it belongs to him.”

Homosexuality: A Halakhic Prohibition Without a Moral Problem

The lecturer presents the arguments over the attitude toward homosexuality as “a dialogue in the posture of deaf people,” and argues that both sides can be right because they are confusing morality with Jewish law. He states that there is no moral problem with homosexuality, but there is a halakhic prohibition, and he emphasizes that a halakhic prohibition does not require a moral conclusion. He rejects apologetics that try to prove that the prohibition stems from considerations like having children, and argues that the point is simply “that the Torah forbids it.”

“Abomination” in Nedarim and How to Read the Term

The lecturer deals with the claim that the label “abomination” proves immorality, and cites the Talmud in Nedarim: “What is ‘abomination’? It means he has gone astray because of it.” He argues that the biblical meaning of the word is complex and is not necessarily identical to its meaning in modern Hebrew, and therefore there is no necessity to connect “abomination” to a moral judgment. He adds that the Torah uses the word “abomination” about many things that, by all opinions, are not connected to morality.

Criticism of Crusades and of Public Inconsistency

The lecturer attacks those he calls “those crazy people from Noam,” including Avi Maoz, and argues that they are “completely upside down” and “need to be hospitalized.” He points to what he sees as a fixation in going out to fight homosexuality while desecrating the Sabbath is “more severe” and “far more common,” and he adds that Sabbath desecration is a matter of choice, unlike homosexuality, which he says is “forced upon him.” He argues that the extremes on both sides feed one another, and that these are “crazy people fighting with each other.”

The Beautiful Captive Woman and Rabbi Karim: Halakhic Permission Versus Moral Prohibition

The lecturer brings up the beautiful captive woman as an example of something that can be halakhically permitted but morally forbidden, and argues that the Torah in the portion of Ki Tetze permits raping a female captive. He mentions the public storm around Rabbi Karim and the claim that “according to the Torah it is possible to rape female captives,” and says this is a halakhah that is “ruled in all the halakhic decisors,” and that one cannot “invent prohibitions” where there is no halakhic prohibition. He says the correct answer is: “Right, there is no halakhic prohibition against doing this. So what? But there is a moral prohibition against doing it,” and he stresses that Jewish law does not have to “fit the rules of morality.”

Changing Moral Norms Versus the Fixed Nature of Halakhic Permission

The lecturer argues that the norms of a given period affect moral judgment—for example, in ancient wars, where raping female captives was “the accepted practice,” whereas today the norms are different and therefore the moral classification is different. He emphasizes that this change is relevant on the moral plane and not to the question of halakhic permission or prohibition, and that ultimately “the Torah does not forbid it. Period.” He repeats that a person can determine that something is “forbidden morally, and not forbidden halakhically.”

Democratic Positions Alongside Commitment to Jewish Law

The lecturer presents his personal position that he is in favor of separating religion and state and in favor of allowing everyone to marry as they understand fit, even in cases that Jewish law forbids, and he says he is prepared “to fight for that” as a matter of state law. He argues that such a position is consistent with commitment to Jewish law because it is based on an independent moral-democratic system alongside a binding halakhic system. He explains that he can say, on the halakhic plane, that it would be better if something did not happen, and at the same time oppose state coercion in the name of democratic values.

Criticism of Secular and Religious Reactions, and of Israel Shahak

The lecturer mentions Israel Shahak of the Hebrew University as someone who published cases in which Jewish law appears immoral, such as the case of a kohen’s wife who was raped and was then required to separate from her husband, as well as a story about not desecrating the Sabbath to save a non-Jew, which he says “turned out to be a journalistic canard.” He argues that the religious response of talking about “higher morality” and hidden profundity is “all this nonsense,” and proposes a simple answer: the moral criticism may be correct, but Jewish law is not committed to morality. He emphasizes that sometimes Jewish law is stricter than morality and sometimes morality is stricter than Jewish law, and that Jewish law does not always “automatically prevail.”

A Transgression for Its Own Sake: Yael and Lot’s Daughters, and Extra-Halakhic Considerations

The lecturer cites the Talmud in Nazir on the statement “A transgression for its own sake is greater than a commandment not for its own sake,” and illustrates this with Yael, the wife of Heber the Kenite, who slept with Sisera in order to kill him, even though she was a married woman and the matter is defined as forbidden sexual relations, for which there is no permission “under any circumstances, including saving life.” He argues that most halakhic decisors are uncomfortable with the plain sense and try to explain it within halakhic override rules, but in his view the plain meaning is that it remains a transgression with no halakhic permission, and nevertheless there is an extra-halakhic consideration that instructs one to do it in extreme circumstances. He adds that in the same passage the Talmud brings Lot’s daughters, who sinned with their father on the assumption that “humanity had been destroyed,” and the Sages praise them even though there is no halakhic permission for it, because in a unique and extreme situation a person is required to decide not only according to Jewish law, within the framework of the idea he calls “It is a time to act for the Lord.”

Institutionalizing Prostitution and Annulment of Marriage: Considerations of Social Character and Norm

The lecturer cites the author of the Akeidah on the question of institutionalizing prostitution, the possibility of setting up a supervised framework that would minimize prohibitions like intercourse with a married woman and with a menstruant, and would reduce prohibitions punishable by karet and stoning. He argues that pure halakhic logic supports minimizing prohibitions, but the Akeidah and most of the medieval authorities (Rishonim) oppose it because they reject “surrendering to such a norm,” and he defines this as a non-halakhic consideration of social character and norms that can prevail. He adds an example of proposals to place a “permanently invalid witness” at secular weddings in order to minimize adultery, and argues that most halakhic decisors reject this for reasons that go beyond the formal halakhic consideration.

“The Fifth Section of the Shulchan Arukh” and Non-Formal Considerations

The lecturer quotes, in the name of the Chazon Ish, the phrase “the fifth section of the Shulchan Arukh” to describe considerations that are not formal-halakhic, but are sometimes “more important than the halakhic considerations.” He uses this to support the claim that there are situations in which morality, social character, and norms can decide the matter, and that a person can hold a certain moral-civic position and still remain committed to Jewish law. He compares the criticism directed at him to claiming that someone who says “chocolate is tasty” is not committed to health.

Deciding Conflicts: Sartre, Intuition, and the Measure of the Good

The lecturer returns to Sartre’s example of the student who was torn between fighting the Nazis and staying with his mother, and argues that there is no decisive answer and that every decision rests on intuition or moral feeling. He connects this to the problem of “incommensurability” and argues that with moral values there is, in principle, a scale of “the measure of the good,” even if it is hard to justify it, and that feeling provides the decision. He argues that in a conflict between a moral value and a halakhic value, the decision is examined through the overall question of “what is proper to do in God’s eyes,” which includes God’s moral will and God’s halakhic will, and here too, in the end, feeling decides.

Incidental Clash Versus Essential Clash

The lecturer distinguishes between an incidental clash, such as saving life versus the Sabbath, or a situation where there is no matzah and only grain that is newly harvested and forbidden before the omer, and an essential clash in which the price is built into every fulfillment of the commandment. He argues that in an essential clash it is unlikely that morality would prevail over Jewish law, because the Torah gave the command when the moral cost was already clear in advance, and he illustrates this with the obligation to execute Sabbath desecrators alongside the prohibition “You shall not murder.” He explains that here “the specific overrides the general law” so that the specific command will not be emptied of content, and therefore the Torah itself decides that the halakhic value overrides the moral cost in such a case.

Criminal Law, a Halakhic State, Coercion in Matters of Belief, and Prior Warning

The lecturer argues that a halakhic state is possible only when the public accepts Jewish law upon itself, and not when there is a public that does not accept it. He says that someone who does not believe in the halakhic system is “coerced” in the sense of “coercion in matters of belief,” and therefore there is no place to punish him, similar to someone who did not know that today was the Sabbath, and he formulates this as “the Merciful One exempts one who is coerced.” He distinguishes between someone who understands that it is forbidden and acts out of impulse, and someone who does not understand the prohibition at all, and compares this also to the modern criminal system, which recognizes exemption from criminal responsibility in cases of insanity while still allowing confinement for protection. He emphasizes the requirement of prior warning in capital law, where the accused must say, “Yes, I know, and on that basis I am doing it,” and argues that this also explains why “a religious court that executed once in seventy years is called destructive,” and that in practice this is almost a purely theoretical matter.

Okay, let’s start. Wait, wants more. Yes, but I said read it, it’s worth reading it there because I don’t want to get into it here right now, because it’ll take my… okay. Noam, right? Boaz, and Ben. Okay, so first of all I want to finish the issue of morality and still manage to touch on one more topic—we only have two meetings left until the end of the semester—namely the issue of authority. I spoke about it a bit in some context at the beginning of the semester, but I want to do it a little more systematically. We talked about the duality between the king’s law and halakhic law, and I said that this is not only a duality of systems but a duality of purposes, of values. The king’s system is meant to bring about proper, orderly social life—let’s call that morality—and the role of Torah law, or halakhic law, is to bring about the indwelling of the Divine Presence. Basically, let’s call these religious goals. The first are social and moral goals, and the second are religious goals, and my claim was that the goals are independent of one another. These are two completely different systems; they don’t talk to each other. And therefore there can be a situation—I spoke about this in previous sessions too—like, say I decide for myself it’s not a good idea to eat chocolate. Someone says it’s not a good idea to eat chocolate. Shahar says it’s a good idea to eat chocolate because it tastes good. Who’s right? They’re both right. It’s fattening and it’s tasty. Is that a contradiction? No. Is there a contradiction between those two aspects? No. From the standpoint of taste, it’s tasty; from the standpoint of weight gain or health, it’s fattening. Okay? So now, true, when it comes to the question of whether to eat it or not, that puts me in a certain conflict, but a conflict is not a contradiction. Okay? A conflict means that on the practical level I have a dilemma, I don’t know what, and now I have to decide which outweighs which, but there’s no principled problem in my being in conflict. And so what if I’m in conflict? Even within morality itself I can have a conflict between two moral values, or between morality and something else, or between health and taste, or between—whatever—between all kinds of things like that, interest and morality, things like that. Like the case of the cigarette. The case of the cigarette, yes, with the… let’s see. Yes, with the cigarette. He goes to his doctor friend, what does he recommend? He says to him, my friend, as a doctor I forbid you cigarettes, it’s harmful to your health. As a friend, go for it and enjoy, because people make a lot of money from it. Okay? Now here too, the considerations here say don’t do it; the considerations of self-interest, the financial considerations, say yes, do it. There’s no contradiction in that. Because you’re examining the thing from two different aspects; obviously each aspect behaves independently of the other aspect. There isn’t—and on the practical level it may lead me to conflict, so what? I said the same thing regarding Jewish law and morality. Jewish law and morality are two different, independent categories, and therefore it is entirely possible that regarding the very same act, the halakhic statement will be that there is no problem—or even that one is obligated to do it—and on the moral level the moral statement will be that it is forbidden. And vice versa. It could be that the moral statement is that one is obligated, while the halakhic statement is that it is forbidden, or whatever. Okay? So we brought the Maharal, if you remember, in Be’er HaGolah. I quoted him bringing two examples himself in the laws of returning lost property. In the case of returning lost property, there is halakhic stringency as against moral principles, and there is stringency in moral principles as against Jewish law. The halakhic stringency is that if, say, you pick up—suppose you found gold vessels with identifying marks on them, and they’ve been with you for ten years and no one comes to provide the identifying signs and claim them. Morality says: use them yourself, or give them to someone else; it’s a shame, expensive vessels, they could be put to use, the fellow obviously isn’t going to come in the end. Jewish law, however, says: let it remain until Elijah comes; you are forbidden to touch it. Once it came into your possession before the owner despaired, you may not touch it forever. Why? There are indications. Again, there are indications. Jewish law establishes indications. If there are identifying marks, the owner has not despaired. That’s an assumption. Unless the lost item is old—if you see the item is already rotting there, presumably the owner has despaired. It’s a matter of indication. If you don’t know, then it’s a doubt. But in principle, if you picked up the lost item after the owner despaired, you can take it immediately, not after three years. If the person had not despaired when you picked it up, then even after a hundred years, let it remain until Elijah comes. That’s the Talmudic law; nobody touched this. In any case, that’s on one side. On the other side, there is a moral stringency that says once the person has despaired—if I picked it up after the person despaired, I can take it. Morality says no: if a person comes and gives you identifying signs, so what if he despaired? It’s his. Why on earth are you taking it? Morally, give it back to him. Why do you care whether he despaired or not? The lost item is his by all accounts. He gave identifying signs; that makes it completely clear. It certainly doesn’t belong to you. If you had expenses, okay, you deserve reimbursement, but why should you take it? So here there is a leniency in Jewish law and a stringency in morality. In short, there are situations in which morality is stricter than Jewish law, and situations in which Jewish law is stricter than morality. Or in other words, something can be morally forbidden but halakhically obligatory, and something can be morally obligatory and halakhically forbidden. It goes in both directions. Now I’ll maybe bring a few examples to illustrate these points. Look, for example, there are major debates about the attitude toward homosexuality. Okay, very current in these years. Yes. Now this debate is to a large extent a dialogue of the deaf—most debates are, a dialogue between deaf people. Because the secular side always accuses: what kind of dark religious system is this that doesn’t give proper treatment to homosexuals, etc., and the religious side says: what are you talking about? It’s immoral to be like that, not to have a family, and all those things. And in my view both sides are wrong—or both sides are right, okay, both sides are right. What do I mean? There is no moral problem with homosexuality. I see no moral problem at all. It is halakhically forbidden. But the fact that it is halakhically forbidden does not obligate me, even as a believing person, to decide that it is also immoral. What’s the connection? Who is being harmed by it? Two people want to do such a thing—let them do whatever they want. Why should that make it morally forbidden? Pork is also halakhically forbidden to eat, so does that mean eating pork is immoral? What’s the connection? There are halakhic prohibitions that are a category unto themselves, and the moral question is a category unto itself. Now more than that, the Torah calls it an abomination. The Torah says it’s an abomination. In the Talmud in Nedarim—they always tell me, wait, they always argued against me, how can that be? Obviously it’s immoral, the Torah itself says it’s an abomination, not just that it’s forbidden. True, the Torah says “abomination” about many things, some of which have nothing to do with morality. And the Talmud in Nedarim says: what is “abomination”? What does “abomination” mean? The Talmud says: “he has gone astray in it.” The way we interpret the word today, “abomination,” that’s in our Hebrew. But that is not necessarily the meaning of this biblical word. One knows, but one has to—its meaning is more complex than it seems to us. So what? And so what? And therefore? How is that connected to whether it is moral or not? No, the fact that there is a halakhic problem is not because they can’t have children, but because the Torah forbids homosexuality. Forget “they can’t have children.” He can have children with another woman, a surrogate, or a non-Jewish woman, or whoever, it doesn’t matter. That’s not the point; the point is that the Torah forbids it. No, the point is that the Torah forbids it. I don’t need to explain what it leads to. The Torah forbids it. That’s it, period. The point is that the Torah forbids it; I don’t need to explain what it leads to. The Torah forbids, that’s clear. There’s no debate at the moment that it is halakhically forbidden. But what happens? Everyone resorts to apologetics. The religious side also feels the need to explain why it’s supposedly immoral, and a great many people terribly convince themselves that it is immoral too. It’s awful. You have all those crazy people from Noam and those people—what’s his name, Avi Maoz—and those lunatics, they’re all completely upside down, in need of hospitalization. What? Doesn’t write anything, what should I write—guys, homosexuals—what should I write—is it dependent on their choice? What kind of nonsense is that? So others will have children. What nonsense is this? And if someone wants to have only two children, is that also a rupture? Let him have ten. So what’s the difference? So he has zero and makes an agreement with someone else that the other will have ten, okay? He shares financially with him, that’s fine. What? Hello. What? No, I’m not saying—there may be some for whom there is some room—but it’s not true that categorically this is a person’s free choice. That is complete nonsense. You believe that? Fine, be healthy. You can also believe that this menorah is a monkey. What? Fine. Are you serious? You answer. You answer the answer to… obviously. I’m extreme? I don’t understand—you’re talking about facts. What do you mean extreme? You’re talking about facts. People have no interest in being like that. Or in a secular world maybe they don’t mind being like that, but they don’t have some interest in it. So why would they just be like that for no reason? But I’m saying, first of all it wasn’t that huge, but beyond that, after all, you understand that those from conservative places who are like that go to liberal places and there they become like that. Why are all the gays in Tel Aviv? Because they can’t be gay in Jerusalem, so they go to Tel Aviv. It’s not because more gays are born in Tel Aviv. Come on, let’s be serious. You’re talking about statistics; I’m not talking about three guys you know. When you talk about statistics, you have to understand how to analyze them. Fine, never mind, it doesn’t matter. I’m telling you, really, we’re talking about facts; it’s a shame to… We’re wasting our time. We’re wasting our time. It’s a shame. In any case, the claim is that the claim that this thing is halakhically forbidden does not force me necessarily to conclude that it is also immoral. I can reach the conclusion that it is immoral, although to me that seems absurd. If someone says that to me, fine, then we disagree. But if what compels him to that is that the Torah halakhically forbids it, then he is simply mistaken. That is not true; there is no compulsion at all. The Torah has many other prohibitions, and about them too it says “abomination,” and they are not moral prohibitions by any standard. So why would you decide that this one is immoral? Why this one? Why do the lunatics I mentioned before decide to launch a crusade against homosexuality when desecrating the Sabbath is no less severe and no one cares about that anymore? But I’m saying, desecrating the Sabbath is more severe than dismantling the institution of the family—or no less severe—and far more common. And desecrating the Sabbath is a matter of a person’s choice, unlike homosexuality, which is imposed on him. It is much easier to refrain from desecrating the Sabbath if the person would decide to. He just doesn’t want to. No one can argue that for the homosexual this is a very difficult trial; even if somehow he manages to withstand the trial, it is very hard. And against those people you go to war, while those offenders running wild don’t bother you at all? Is that serious? Obviously they have some fixation in their heads; that’s obvious, no doubt about it. I understand, I understand, I understand, and they’re also bringing it into schools, fine. But what, desecrating the Sabbath we’ve already gotten used to; this we haven’t gotten used to yet. There’s no education for anything. In a religious school there is no education for either this or that. Rather, the question is… they accept—the story of Givat Shmuel—the question is whether they accept someone like that. Do they also accept Sabbath desecrators into a state religious school? So what? Yes. Fine. I’m not saying they behave correctly there; they don’t behave correctly there. I’m saying to see this as the red line, really some kind of obsession—so what happened? Fine, but a person who enters a religious school, a person who is gay or something like that, doesn’t enter the school carrying “the content.” That’s what he is. What do you want him to do? Throw him out? A religious school usually doesn’t bring those contents in as contents. There are people who are like that, true. So what? That’s another discussion; we can talk about it. A lot of crazy things happen in all directions. From the conservative side things happen that are no less crazy than from the liberal side. Therefore I say there are lunatics everywhere. Usually, by the way, the lunatics provoke the opposing lunatics, and then it’s lunatics fighting each other. Right. Anyway, to our matter: what I just want to say on this issue is that deciding that this thing is halakhically forbidden does not force the conclusion that there is something immoral here. And vice versa: if something is a halakhic commandment, that does not mean it is moral. For example, there is the case of the beautiful captive woman. The beautiful captive woman—the Torah in Parashat Ki Tetze says that it is permitted to rape a captive woman. Right? You remember the story with the current chief military rabbi? Yes, when he was chosen they brought up from the dead, from a few years back, some letter or answer he had given someone saying that according to the Torah it is possible to rape captive women. And then everyone shouted and screamed, how can they appoint him as chief rabbi, what will he do there, how will he educate? Now this is Rabbi Karim, I think, right? The chief military rabbi. The current one. Yes. He was speaking about Jewish law. Speaking about Jewish law. The answer according to what? That is indeed the law. What do you mean? It’s written in the Torah, ruled in all the decisors. Yes, that’s the law, that’s clear. Now immediately a huge uproar arose. What do you mean, and how can they make him chief rabbi, and how will he educate the soldiers, and so on and so on. Now everyone was terribly embarrassed, because the truth is that of course he was right—that’s what Jewish law says. On the other hand, of course no one dares say that out loud today, because you can’t say such a thing. So then all kinds of excuses and explanations start: no, that was for then and not for now. Bullshit. There is no truth in that at all. So what follows? Wait—even then it wasn’t a recommendation. The Sages say: “The Torah spoke against the evil inclination.” It wasn’t a recommendation even then. But even then it wasn’t a recommendation, again. What’s the difference from today? So what? That huge gap means nothing; it does not turn it into a prohibition. You cannot invent prohibitions. If it is not forbidden according to Jewish law, then it is not forbidden, period. What? Is levirate marriage permitted? Yes, levirate marriage is permitted. First of all, it’s not true that levirate marriage is forbidden. The question is whether there are people—whether they practice it, whether they prefer the ceremony of release instead—that’s a different discussion. “Forbidden to do levirate marriage” is not a thing. If Jewish law allows it, then Jewish law allows it, that’s it. So what does that have to do with it? No, it’s not exactly the same thing. I’ll explain again: it’s not exactly the same thing. Because there is a difference between saying that something is forbidden, and saying that something is not recommended, and saying that something is not customary, and saying all kinds of other things. Those are two different things. And one of the major mistakes in that whole debate was precisely the point I’m talking about here. Basically the correct answer there should have been—and everyone stammered and babbled nonsense and nobody bought it because it was nonsense. The correct answer is: true, there is no halakhic prohibition against doing this. So what? But there is a moral prohibition against doing it. The secular people think in terms of halakhic prohibition; they don’t understand halakhic prohibitions at all. But for the secular side, this is a moral prohibition. I too have that same moral prohibition—what’s the problem? You want it to be halakhically forbidden too? Why? It is morally forbidden exactly as you think, and halakhically there is no additional halakhic prohibition beyond the moral prohibition. So what happened? What’s the problem with that? What, does Jewish law have to conform to the rules of morality? Why? Do the rules of medicine, say, also have to conform to morality? What’s the connection? If Tylenol lowers a fever, and it harms or doesn’t harm, then it won’t lower the fever? There are rules. Certain systems of law and other systems of law—you cannot judge one in light of the other and vice versa. The question whether something is moral or not is one question, and there there are no different answers between religious and secular people. Morality is universal by definition. And if it is immoral, then it is immoral for religious people and for secular people alike, and vice versa. But the question whether it is halakhically forbidden or halakhically permitted is an entirely different discussion. What does that have to do with the question of morality? So I’m saying: it is completely immoral, and there is no halakhic prohibition. That’s all. What’s the problem with that? It was permitted, not forbidden. Did you hear “it was done” or did you hear “it was forbidden”? No, yes yes, permitted. Yes, it was permitted, but it came from a place of it being immoral, obviously. That’s all. Now you can start bringing in the fact that the norms prevailing today are not the norms that existed then. That is true, and highly relevant on the moral plane, because on the moral plane it is obvious that it depends on accepted norms. There are situations in which, if my enemy rapes captive women when he takes them, there is less expectation of me not raping his captives. That is the accepted procedure; that’s how war worked in that period. Today things don’t work that way, so it is reasonable to assume that the norms would morally forbid it. But what does that have to do with whether it is halakhically permitted or forbidden? Fine, okay, yes—but there is first intercourse. Okay, but still, still, bottom line, the Torah does not forbid it. Period. You cannot argue with that. That is the fact. You can argue a hundred times about the reason for the verse and “the Torah spoke against the evil inclination”—the Sages already said that. Fine. But it spoke against the evil inclination. So now there is no prohibition. There is no prohibition, that’s all. So what? Why do I care about the likelihood now? I’m asking whether it is permitted or forbidden. Good. So what you’re saying is: it is morally forbidden, and there is no halakhic prohibition. That’s all. Why do I care now about the likelihood or not? I’m saying there is no halakhic problem, there is a moral problem, period. That’s all. If a person could not do this halakhically, he would not do it. Obviously. That’s what the Sages say. You cannot invent a prohibition. There is no prohibition. The Torah says there is no prohibition. From where will you invent it? It may be that if the Torah were given today, perhaps it would impose a prohibition on this. If it had imposed such a prohibition, I could talk to you, but it didn’t. So what follows? So what follows? So what is the conclusion? No, that’s not right. Where in Jewish law? Tell me what prohibition the person transgresses. In the case of the beautiful captive woman, certainly—the permission. Yes, obviously. There isn’t one. You cannot invent prohibitions. All kinds of explanations—the Torah was given against the evil inclination—all correct, all fine, but that is what the Torah says. You cannot invent prohibitions. You can say that today, on the moral level, the situation is different and we today forbid it morally. Certainly. I definitely think it is morally forbidden. And by the way, on this issue I am no less good than any secular person; for him too it is forbidden only morally. Why in the world would his grandmother care whether from my perspective it is halakhically forbidden or permitted? So why does his grandmother care whether for me it is halakhically forbidden? The main thing is that it is morally forbidden. That’s all, exactly as for him. Like the rabbi of Ponevezh, yes—he said he was as Zionist as Ben-Gurion. On Independence Day he neither recites Hallel nor omits Tachanun on Independence Day, exactly like Ben-Gurion, who also neither recited Hallel nor omitted Tachanun on Independence Day. Somehow there is this feeling that religious people have to be more than secular people, because otherwise they get attacked. Why? For them it has to be both morally forbidden and halakhically forbidden. Why? What does one have to do with the other? According to the rules of the Bar Association, is it also forbidden to rape captive women? No, no such rule appears in the Bar Association. Do you understand? It’s irrelevant. It’s a stupid criticism. The problem is that both sides share in this stupidity—the critics and the defenders alike. And why? Because they don’t understand this ABC I’m talking about here. This separation that has to be made between the moral question and the halakhic question, in both directions. If something is halakhically permitted, that does not mean it is morally permitted; and if something is halakhically forbidden, that does not mean it is morally forbidden. In both directions. Homosexuality and the beautiful captive woman are two examples of the two directions. Now, the significance of this is much broader than these extreme cases. For example, matters that are very current too. How do I relate, say, to democratic values today? For example, I think religion and state should be separated. And I think everyone should be allowed to marry as he understands, and I’m willing to fight for that. As he understands—what does that mean, a dog? Marry a dog, that doesn’t seem right to me. But someone of the same sex, a non-Jewish woman, whatever he wants. Not a dog and not a stone, okay, there are lunatics, plenty of them. I’m talking about accepted things; leave me alone with extreme cases now. You know, many times people use slippery-slope arguments and extreme cases, and as a result they don’t allow themselves to do anything. In principle I don’t like slippery-slope arguments, except in very extreme cases. Slippery-slope arguments generally tell you: don’t do what is reasonable lest one day people do something unreasonable. So I say: but right now I first want to behave the way it is right to behave now. What will happen one day? I don’t know. We’ll deal with it when it happens. Slippery-slope arguments are problematic in my eyes. Leave that for the moment; that’s not the essence of the matter. What I want to say is whether such an option can exist for a person committed to Jewish law. I think religion and state should be separated. I think everyone should be allowed to marry as he sees fit, even if it is halakhically forbidden—with a non-Jewish woman, with a gay partner, whoever you want—and I think I would fight for that to be the law of the state. The question is whether this is a viable option. After all, from a halakhic standpoint there is coercion regarding commandments; one has to make sure people do not commit transgressions, that they observe. How can such a view be reconciled with commitment to Jewish law? I have an argument with you now, but that’s not the point. I want to present the principle. The principle is that I can hold a position of this kind together with commitment to Jewish law. Why? Because I think that on the principled level democratic values are values that morality obligates, even where that contradicts Jewish law and Jewish law forbids, say, such a thing, or obligates something else that democracy does not allow, or something like that. And I don’t feel there is a contradiction in being committed to these two systems. If you ask me whether I think it is good for a person to marry someone of the same sex, the answer is no. I would be very happy if that did not happen, because it is against Jewish law. But on the other hand I don’t want the state coercing such things, because I believe in democratic values. So that I say on the moral plane, and this I say on the halakhic plane, and I can believe both of those things in parallel. I don’t have to subordinate one of them to the other. To subordinate one to the other, as though one were subordinate to the other. I said it that way. Now, you will almost never hear positions like these, because people are not aware of this option—what I called here normative duality. That there is a duality, there are two systems of laws, and there may be contradictions between them—contradictions meaning conflicts. That does not mean I cannot be committed to both. And if I am committed to both, then just as within morality itself there can be a conflict between one moral value and another—we talked about that—so too there can be a conflict between halakhic values and moral values. And does that mean I am not committed to one of them? Absolutely not. There was—I may have mentioned him, I don’t remember—Israel Shahak from the Hebrew University in Jerusalem, who loved to publicize all kinds of cases where Jewish law behaved in an immoral way. So once he told about a wife of a priest who had been raped, and they forced the couple to separate. The decisors required them to separate because that really is the law. A priest’s wife who was raped. Someone in post-trauma, and you give her more trauma. Or similarly, they were unwilling to desecrate the Sabbath in order to save the life of a non-Jew. The second case at least turned out to be a journalistic canard. But never mind. He published all kinds of cases of that sort, and all those cases are indeed correct from a halakhic standpoint. Now everyone went on the defensive. The secular side attacked, the religious side went on the defensive. How can that be? Blah blah blah blah blah, there’s some higher morality, elevated, deep, no one understands it, all those kinds of things, all this nonsense. The very simple answer is: you are right on the moral plane, but Jewish law is not committed to morality—neither leniently nor stringently. These are two parallel systems. And therefore sometimes the conclusions can be opposite between morality and Jewish law, sometimes leniently, sometimes stringently. And by the way, the claim is that Jewish law does not always prevail. When there is a conflict, sometimes this value prevails, sometimes that value prevails. For example, the Talmud in tractate Nazir discusses the topic of a transgression for its own sake. “A transgression for its own sake is greater than a commandment not for its own sake.” Okay? Now what is the example of that? For example, Jael the wife of Heber the Kenite, who basically slept with Sisera in order to kill him. She gave him milk, slept with him, and killed him. Okay? Now she is a married woman, the wife of Heber the Kenite; she had a husband. Okay? So there is no permission here. This is sexual immorality, something forbidden in every circumstance, including danger to life. Nothing permits it. Okay? How was it permitted to her, and why do they praise her that a transgression for its own sake is greater than a commandment not for its own sake? How do they praise her for such a thing? How do they permit such a thing? So the claim of most of the decisors who go in that direction is that they recoil from interpreting the passage straightforwardly. So they try to explain that there is some kind of rule of override here, like a positive commandment overriding a prohibition or something of that sort. But in this context I can’t see how one could view this as a rule of override. There are situations where within Jewish law itself there is a clash, like a positive commandment versus a prohibition, and then the positive commandment overrides the prohibition. Human dignity overrides a Torah prohibition. There are rules of override under which sometimes one may commit transgressions when faced with some value that justifies it. And that itself is a halakhic consideration. Jewish law itself says that this overrides that. So basically that means the result is a halakhic result: Jewish law says one should do it. But it is clear that the plain meaning of the passage is not like that. Exactly. The plain meaning of the passage is not like that. After all, they don’t call it a commandment; they call it a transgression for its own sake, and it’s a transgression. There is no halakhic permission. So if there is no halakhic permission, how can they praise her for having done it? “Most blessed of women be Jael, wife of Heber the Kenite”—Deborah blesses her in the Song of Deborah. How do you bless a person for committing a transgression? The answer—and it remains a transgression—there is no halakhic permission to do it. There is no halakhic permission, but there was an extra-halakhic consideration saying that here, nevertheless, this should be done despite the fact that it is a transgression. By the way, on that very page in the Talmud in Nazir the Talmud brings Lot’s daughters. Lot’s daughters had relations with their father, and the Talmud praises them greatly for it. Yes, in that same topic of a transgression for its own sake. Right afterward. Yes, the Talmud—the Torah itself describes it. It’s not interpretation. The Torah says they understood that humanity had been wiped out, and they said: look, if we don’t violate this prohibition with our father, humanity is finished. What? No disaster, forbidden sexual immorality… I didn’t understand. There are… I don’t know. They preserved all… They saw that all the cities of the plain were destroyed—Sodom and Gomorrah, everything was destroyed. Fine, so they thought… that was the civilization they knew then, so they understood it as a worldwide catastrophe and that no one was left. That’s what they understood. And once they understood that—the Torah describes it—and once they understood that, they decided what they decided to do, and the Sages highly praise them for it. And again, this is sexual immorality with their father. There is no permission in any halakhic situation to do that. It’s the sons of God, the sons of man—there are various interpretations one way or another. But what is happening here? What is happening is that from a halakhic perspective there is no permission, but when you are in a situation so extreme, so unique, that it is obvious to you that nobody ever imagined there could be such a situation, and there is no Sanhedrin here that you can ask questions—okay, is it permitted, forbidden, what should be done, what does Jewish law say—you have to make the decision. So you are required to make a decision, and not always according to Jewish law. Sometimes you understand that in this situation, despite there being no halakhic permission, or at least none you know of, this is what you need to do. So you need to do it. And this is what is called “It is a time to act for the Lord.” That seems to me to be the whole idea. There is no halakhic permission to do it. What, there is halakhic permission? No. It’s a transgression for its own sake. There is no halakhic permission to do it, but Jewish law is not everything. Sometimes there are extra-halakhic considerations, and in sufficiently extreme circumstances they allow you to commit a transgression—or not merely allow you, but instruct you to commit a transgression. I’ll give you additional examples. For instance, the author of Akedat Yitzhak speaks about the question of institutionalizing prostitution. Yes? There are several responsa about this among the medieval authorities. Institutionalizing prostitution: opening an orderly brothel where you can supervise the women, make sure they are not married women, not menstruants but that they immerse, so you minimize the prohibitions. Because people are going to do what they do anyway; at least minimize the prohibitions. There is discussion of this in Akedat Yitzhak and among several medieval authorities. It’s a topic that occupied the medieval authorities. And the author of Akedat Yitzhak argues not to do it. That is also the view of most of the medieval authorities. Why? There is no halakhic logic in this. There is no halakhic logic for forbidding such a thing. After all, people commit this transgression anyway. Now when they do it without supervision and regulation—wait a second—without regulation, what happens? They transgress with married women, with menstruants, all of which are prohibitions punishable by excision and stoning. Okay? Instead, make sure these are unmarried women, have them immerse so they are not menstruants, make sure everything is all right under proper conditions, also morally, hygienically, whatever you want—you minimize the halakhic consequences. Why not? No, it’s not that it immunizes people, not because it immunizes people. But you bring people into a story that is hardly forbidden at all. There is hardly any prohibition in it. Relations with an unmarried, ritually pure woman involve hardly any prohibition. It may be a rabbinic prohibition; maybe according to Maimonides it is some neglect of a positive commandment. Instead of prohibitions of excision, stoning, adultery, married woman, menstruant—the kinds of prohibitions for which one must be killed rather than transgress. To surrender? Right. And that is what the author of Akedat Yitzhak says. He says not to do it because he opposes surrendering to such a norm. Now what exactly is this consideration? After all, from the standpoint of pure halakhic reasoning he is certainly wrong. Because from the standpoint of pure halakhic reasoning, the gain is obvious. The author of Akedat Yitzhak says: true, but there are considerations beyond Jewish law—of public character, of norm, whatever it may be—and they sometimes override Jewish law. Why? Why halakhic reasons? Not halakhic. What am I introducing? I’m not introducing anyone. Whoever stumbles, stumbles, but at least I minimize the prohibition. No, no. No, no. It’s an all-encompassing rationale. If it should be there, then invent it. What does “it should be there” mean? If it should be there, then invent it. Either there is or there isn’t; not “there should be.” There is no halakhic clause you can bring here. Let me give you another example: what about the marriages of secular Jews? There was a proposal—not just once, it has come up more than once. There are a few decisors who even toy with it—to place a permanently disqualified witness there. Why? Because it is fairly common in certain societies that people commit adultery, and so let’s minimize, minimize the prohibitions. Exactly. And therefore the overwhelming majority of decisors reject this, or cancel it out—not reject, but cancel it. Why? Because there are considerations here that go beyond halakhic considerations, and sometimes they prevail over the formal halakhic consideration. I’m giving you examples so that you can see: sometimes it goes in the direction of stringency, sometimes in the direction of leniency, but so that you can see that the halakhic consideration does not always win. Sometimes there are extra-halakhic considerations of morality, of public character, of norms, of whatever you want, that can prevail over halakhic considerations. In the name of the Hazon Ish this is often called the fifth section of the Shulchan Arukh. The Shulchan Arukh has four sections, and it has a fifth section. It is not written anywhere, but everyone understands that there is such a section. And of course he means this metaphorically, in order to explain that there are some considerations that are not formally halakhic, but are sometimes more important than halakhic considerations. Again, I’m not going to get into the discussion itself now. I don’t agree, but there’s no point, because I’m using this only as an example to show the logic. Meaning, I think differently from you, Dov Indy, okay? Now the question is whether this is consistent with a religious outlook, not whether it is correct. We can argue separately over whether it is correct or not. That is one discussion. But given that this is my position, is such a thing consistent with an outlook of religious commitment, halakhic commitment? My claim is yes. That’s what I want to claim. Whether you agree with me specifically on this or not is another discussion; that is not my topic here. My topic here is that such a position can be consistent with commitment to Jewish law. That is my claim. Why? When I claim this, I am not claiming it on the halakhic plane; I am claiming it on the moral plane. And that is a different and independent system. And when people tell me that I am not committed to Jewish law because I support this, that is like saying I am not committed to health because I say chocolate is tasty. No: I am committed to health and also committed to taste, and I have to decide which of them prevails when I find myself in conflict. That’s all. Or when they tell me I am not committed to morality because I forbid the raped woman to remain with her priest husband. I am just as sensitive to morality as all the secular people who criticize me. But I am also sensitive to Jewish law, which they are not, and therefore from the halakhic perspective it compels me to do something here that has a moral cost—and it does have a moral cost. But that is not because I am less moral than they are, but because I have an additional value that compels me to pay a moral price. Just as they too sometimes pay a moral price for another moral value that conflicts with it. So one cannot say that I am not committed to value A because for me value B outweighs it. The same with Jewish law and morality. One cannot say that I am less committed to Jewish law because in certain situations the moral value forces me to pay a halakhic price. Just as one cannot say that I am less sensitive to the moral value because the halakhic value exacts a moral price from me. It works both ways. So I’ll say this briefly, because we actually spoke about it a bit. We talked about conflicts also within morality itself. You remember Sartre’s case with his student—whether to go fight the Nazis and leave his mother, or stay and help his mother. How does one decide that? There is no answer to that. The answer is that you have some kind of feeling, moral intuition, or whatever, that tells you which value prevails in that situation. It is very hard to defend it, very hard to formulate it, but that is how it works. We do not have a better tool than that. Just as I don’t know why one should fight evil. It’s clear to me that one should fight evil. Ask me why? Because evil is not good. I don’t know how to say more than that, right? That same feeling… that same moral feeling that tells me to be committed to value A and tells me to be committed to value B, that same feeling also tells me that value A prevails over value B in this situation. Okay? Now my claim is that—we spoke there about the problem of incommensurability, remember? Meaning the problem of the lack of a common measure. What? Yes. Evil versus human welfare or something like that. Meaning the claim that two different values—it is seemingly very hard to determine which one prevails because we do not measure them on the same scale. There is no shared scale by which we measure both values. My claim was that there is such a scale, and that scale is the degree of goodness in each one. I’m talking now about moral values. Two moral values—helping one’s mother and fighting evil—both are values in the moral context, and not, say, the halakhic or medical or whatever context. So both are ultimately measured by the question of how good they are. Now that doesn’t mean I know how to explain to you why this is better than that, but it does mean that in principle there is room for this comparison. I can ask which is better. How do I know? My feeling. Okay? Now what happens in a clash between a moral value and a halakhic value? Or first between two halakhic values? I first spoke about two moral values—what about two halakhic values? Which of them is more the will of God? Right, the translation into the context of the will of God? No, no—the will of God meaning in the halakhic sense right now. What is the halakhic will of God? Right. Morality too is actually a kind of will of God. And the halakhic will of God—so we said that that will determine the balance between two halakhic values. What will determine the balance between a moral value and a halakhic value? There too, what determines it is the question of what—let’s call it perhaps—is more fitting in God’s eyes. There is a moral will of God, there is a halakhic will of God; one could call it by some broader name: what is it fitting to do in God’s eyes? Yes, when we take into account the whole range of aspects—the moral, the halakhic, and whatever else there may be. And again, in the end, the feeling is supposed to determine what prevails. Therefore there is no principled difference between an intra-halakhic dilemma, an intra-moral dilemma, or a dilemma between morality and Jewish law. The question is always: wait, how do we determine what prevails? And within morality, how do we determine what prevails? In the final analysis it always remains some sort of feeling. That feeling tells me this is greater than that. I don’t know how to ground it beyond that. But the feeling says—just as I see there is a wall here, I see that this is stronger than that. I see it. There is no need to ground something that is a primary observation. Okay? Therefore that claim is good enough. He is especially bothered by the question how do we know? How do we know between one moral value and another, or between one halakhic value and another? Questions. True, there are situations—and we talked about this too—there are two kinds of clash. I distinguished between two kinds of clash. One clash is inherent, and one clash is incidental. An inherent clash is a clash where every time you fulfill the halakhic value it has the same moral price. It’s not accidental. Saving life and the Sabbath—that is an incidental clash. Observing the Sabbath by definition is not supposed to harm a person’s life or health. Or preserving a person’s health is not necessarily supposed to cause Sabbath desecration, right? If a case arises where a person is ill on the Sabbath and there is no way to heal him except by desecrating the Sabbath, then accidentally a conflict has arisen. That is what I call an incidental conflict. What? The Talmud in Yoma. They grasped incommensurability there. They grasped incommensurability in the Talmud in Yoma, yes, but I’m leaving that aside for the moment. I just want to say there is one clash that is incidental, like saving life and the Sabbath. What is an essential clash? For example, if the Torah tells me to execute Sabbath desecrators. Okay? That is what the Torah says. With witnesses and warning, when the conditions are met, they must be executed. Now I have the prohibition “You shall not murder.” The clash between this and the prohibition “You shall not murder” is essential. It is always so; there will never be a case where you execute a Sabbath desecrator and it isn’t killing a human being, right? It is always like that. It’s not that by chance it came out that way here. With the Sabbath it’s an incidental clash; it might have happened and it might not have happened. In a certain situation it can happen. Or I don’t have leaven on Passover. Sorry—I don’t have matzah on Passover. The wheat ran out. And all I have is grain from the new crop. Grain from the new crop is permitted only from the day after Passover, the day of waving. Okay, am I allowed to take the wheat, the flour from the new grain because I have no matzah? Does the commandment of matzah override the prohibition of new grain, or does it not override the prohibition of new grain? Now, that is an incidental clash. Why? Because it isn’t supposed to happen. Usually I will have grain and everything will be fine, but a situation arose in which I have no other grain. That is an incidental clash, okay? So there is a difference between an incidental clash and an essential clash. Why is that important for our purposes? But the Torah speaks about that case. No, but the Torah speaks about that case. No, the Torah does not say something general and then in a certain case a problem arises. The problem arises at the very source the Torah is talking about. With saving life, the situation is not like that. Because with saving life and the Sabbath, the Torah speaks about observing the Sabbath without connection to a situation where your life is at stake. It speaks about preserving life without reference to whether it is the Sabbath and whether that involves desecrating the Sabbath. It may happen that these two instructions produce a conflict, but that is not essential; such a situation might also never arise. In the case of killing a Sabbath desecrator, this is not an incidental clash. Whenever you reach a situation where you need to kill him—if there were witnesses and warning and all that—it always involves killing a human being, and there is a prohibition “You shall not murder,” okay? Therefore it is an essential clash. Now, what is the difference? The difference is that in an essential clash, it is not plausible to say that morality overrides Jewish law. Why? Because the Torah itself, when it gave that instruction, already took into account that there is a moral price here and nevertheless gave the instruction. For example, to kill a Sabbath desecrator. The Torah understood that if I fulfill what it says halakhically, to kill a Sabbath desecrator, that will involve killing a human being. It didn’t happen accidentally; it is always so. It is built into the situation. And if the Torah said to kill, it is telling me here that the halakhic value overrides the moral price. That is what it is telling me, because otherwise it would be impossible to fulfill this commandment of the Torah at all, because it is always so. Now, if it is incidental—exactly—if it is incidental, then no. You can say, for example, the prohibition of homosexuality, okay? I can say: look, the prohibition of homosexuality is immoral, because you are demanding of a person something that is very hard to withstand, if that is how he is built. I say, look, if this is a person who has the possibility of deciding, like we said before, maybe there is such a person who has that possibility. Maybe the Torah spoke only about him. Then indeed the clash is incidental, not essential, because the clash exists only for someone who has no choice in the matter, who is built that way. It doesn’t threaten me—no, it doesn’t threaten me—so I’ll say it generally, no problem, everything is fine. Fine, so I’ll say it, so what? I’m asking a question. There’s nothing left of it, so what? I’m saying there is a distinction to be made between an incidental clash and an essential clash. Afterward you can say: look, even in an incidental clash I don’t accept your interpretation. Fine, that’s another argument. But I’m saying first one has to understand that it is a different situation. Because in an incidental clash I can offer interpretations that the Torah was not speaking about situations of conflict. For example, the Torah told me to keep the Sabbath. What if there is danger to life? Ah, no, no—that is not what the Torah was speaking about. It was speaking only in a place where there is no danger to life. That is the answer you accept? What explanation? That’s what I just said—the explanation. The Torah was speaking only in a place where there is no danger to life. You accept that because the Talmud already did the work; that’s exactly the point. But you see that the Talmud made such a move because the clash is an incidental clash, and in incidental clashes there is room for such considerations. In contrast, in an essential clash there is no room for such considerations. Why? Because in an essential clash, when the Torah said to kill a Sabbath desecrator, it obviously also took into account that a person would die here. That is built in. There is no situation in which I kill a Sabbath desecrator and a person does not get killed. Fine, these are all homiletic interpretations of reasons, but the question is how you act. What you’re saying sounds right, but still, when you make such a limitation you have to justify it; you don’t just do it arbitrarily. There is justification. And why do I care why they did it? There is justification, finished. As far as I’m concerned that’s what matters. There is some justification when they limit a certain law, a law written in the Torah—“an eye for an eye” means monetary compensation. Okay, so the Torah says “an eye for an eye,” and the Sages come and say: money. Why money? Because they wanted to limit it? No—because there is a verbal analogy, “under” “under.” Without that they can’t limit it. There is a verbal analogy. One can say they had motivation, that’s fine. I’m not arguing with motivations. But in the end there is a mechanism by virtue of which they limited it. It does not happen just like that. It’s not “because we felt like it, so we don’t observe this law in the Torah because we don’t feel like it.” What do you mean “we don’t feel like it”? For that you need the verbal analogy. But here there are two rules, and both are obligations written in the Torah. You don’t need a verbal analogy. After all, the Torah says to keep the Sabbath, and the Torah says “and live by them,” preserve life, right? Now when there is a clash, I have to make a decision, because whatever I do one of the values will be harmed. When someone desecrates the Sabbath, do you have to kill him? That is not a problem at all, because that is an essential clash. No—in an essential clash there is no problem at all, because in the essential clash the Torah itself says to kill Sabbath desecrators. So by that it is telling me that if one must kill the Sabbath desecrator, it does not bother Me that a person dies here. Ignore the moral price. The religious obligation justifies the moral price. That is what the Torah says, because otherwise it would not say to kill a Sabbath desecrator. That is what it says. Obviously. What’s the question? Yes, obviously, one must kill them. Correct, one must kill them. Why not? What’s the question? No, that’s not true—it doesn’t limit itself at all. Capital punishment is ruled by all decisors to require killing them. What do you mean? Jewish law does not limit itself in any way on this issue. Jewish law says something very clear about which there is not a single dissenter in the world. What do you mean? What is there to say? Is there anyone who doesn’t say that? We don’t have a court today, there are no capital cases today, irrelevant. We do not kill Sabbath desecrators, we do not kill homosexuals, we do not kill anyone. But that is the halakhic rule. What do you mean? If we did, then with witnesses and warning they would have had to kill them. That is Jewish law. What does it mean “Jewish law exists”? You’re speaking in very broad generalities. What does it mean that Jewish law limited itself? Where? What does Maimonides write? Is there a verbal analogy? Is it written in the Shulchan Arukh? That Jewish law requires—what can you do? Not that “in order to” it limited itself because it had been unlimited and then they limited it. Jewish law is limited in this matter. What does this open up? Because they understood that this is what Jewish law is. What does this open up? I don’t know who conceived it—maybe Moses our teacher, I have no idea who conceived it. Among the medieval authorities… Fine, so what? The Oral Torah is part of the Torah. Is “an eye for an eye” meaning monetary compensation not part of the Oral Torah? A verbal analogy is also part of the Oral Torah. So what? Fine, it’s part of Jewish law. And to say that Jewish law limits itself is a very broad statement. In the end it is a summary of many, many things that are Jewish law itself. Not that Jewish law limits itself, but that Jewish law itself is limited. Jewish law does not obligate the death penalty for someone who did not have witnesses and warning—that is clear. So that is not a limitation. It is a limitation on the conception that the death penalty applies to everyone, but there is no such conception. And this statement that Jewish law limits itself is very broad. Jewish law does not limit itself; Jewish law has its own statements. Those statements sometimes place limits on various laws. The claim in the end is that in an essential clash there is what jurists call a rule that… the second law is more specific, and therefore it always prevails over the general law. Why? Because if the general law prevailed, and I would not kill Sabbath desecrators because of “You shall not murder,” exactly, then the second law would be emptied of content. So why did the Torah write it? Right? But if the second law prevails, then the first law is not emptied of content: there is a prohibition to murder anyone except Sabbath desecrators. Okay? Therefore, in built-in clashes—not incidental but essential clashes—the principle is usually that the specific prevails, if it is a clash of Jewish law against Jewish law. Or if it is a clash between Jewish law and morality, then Jewish law prevails, because if the Torah says one must do something and it has a built-in moral price—not accidental, built in—then when the Torah said to do it, it already took account of the moral price and nevertheless said to do it. Fine, so the Torah told us that here, in this case, Jewish law prevails over morality. Okay? But in incidental clashes the matter remains open, and it is certainly possible that morality will decide. And those are the examples I brought earlier. A halakhic state will not be when there were those people—it can be. A halakhic state is where the public accepts Jewish law upon itself. You cannot make a halakhic state when there is a public that does not accept Jewish law. What do you mean close? So what if there’s a majority? But there is a large part that does not accept Jewish law, even if it is not the majority. No, no—a resident alien is a non-Jew. I’m not talking about a non-Jew; I’m talking about Jews. No, no, a resident alien is not a Jew; it’s a non-Jew. There is a convert and a full convert, not a resident alien. A convert accepts all the commandments. Again, I’m saying he is not a convert; his seven commandments are his. Okay, that’s like the law: whoever comes to be a resident in the State of Israel has to obey its laws. Fine, what’s the problem? But in a place where you are going to kill a person for something that he doesn’t even think is forbidden—then it depends. If you establish this as state law and everybody knows these are the rules, and whoever does not accept those rules should leave here—meaning he is not part of the state—fine, then perhaps the rules really would be applied to him too. I think they should not, because I think that if a person does not believe, then he is under compulsion, and one who is under compulsion is not liable to punishment. There is compulsion in matters of belief too. A person who does not believe in the halakhic system is entirely under compulsion, and so what if he does not observe it? That is like someone who didn’t know that today was the Sabbath. Someone who knows that today is the Sabbath but does not know at all that one must keep the Sabbath—he forgot that one keeps the Sabbath—is under compulsion to the same extent as someone who does not know that today is the Sabbath. What is the difference? No, I do not think one coerces someone who does not believe. One coerces someone who does believe, just as one enforces any law, on condition that he believes and understands that it is wrong but does it because he has an impulse to do it, like any criminal. Then it will be enforced upon him, and he will be punished if he did it, all fine. If a person does not believe in it at all, then he is under compulsion. What punishment can you give him? What do you want from him? He is under compulsion. “The Merciful One exempts one who is coerced.” Religious homosexuals are not all right in the sense that they know it is forbidden, but perhaps you can say they are coerced; you can say many things; there are other lenient arguments. They do not have that argument of coercion in matters of belief, meaning people who do not know that this thing is forbidden. Secular homosexuals do have that, yes, or secular Sabbath desecrators. We are not legislating the Torah; we are uprooting distorted conceptions that have become entrenched regarding it. If you’re not in favor of it, then you also think that way, so what’s the problem? Why do we need to argue? No, it does intend to enforce it after people understand that this is… Indeed, he really would be exempt. Or we would put him in prison as protection, so he won’t come and murder more people. But he is exempt on the punitive level. Right, obviously. What’s the question? Courts today exempt in that way too. What do you mean? A person who does not understand that murder is… yes, he is mentally disabled. Or a person who had an uncontrollable impulse, yes? He snapped, had some fit of rage, and did not understand at all that what he did was wrong—he is exempt from criminal responsibility. It may be that he is dangerous because it could happen again, so we will place him in detention to protect society from him, but not as a sanction. Right, he is exempt. Every system works this way. And what yes? After all, we said… No, but the Talmud says that without warning one does not punish. Right—what is warning? Warning means: yes, and nevertheless I am doing it. Without that, they do not kill him. For any act he does—Sabbath desecration, adultery, homosexuality, whatever you want. But the person has to say: yes, I know, and nevertheless I am doing it, I understand. So you understand that… no, I’m doing it because I have an impulse to do it. Yes, that’s a problem. No, he is not… no, impulse is not compulsion. What, everyone who has an impulse is coerced? Of course not. An uncontrollable impulse—is that an impulse? That’s serious psychosis. Every violent person, every thief, had an impulse to do it. Are they all exempt from criminal responsibility? No, no. There is a difference between an uncontrollable impulse—that’s what it’s called, an uncontrollable impulse, impossible to control—and an urge or impulse, for which a person is responsible. Overcome it if you have an impulse. So what? There are situations where it is temporary insanity, fine. Then he really belongs in psychiatry, and they exempt him from criminal responsibility because he is not responsible for his actions. Not every person with an impulse is exempt from responsibility. But in every criminal system, someone with an uncontrollable impulse is exempt from responsibility. Impulses are usually something we are supposed to deal with. No, but there it is a constant impulse throughout life, to stand up to it. It’s like the Talmud in Ketubot that I brought: if they had flogged them all their lives, they would have worshipped the idol. A person who finds it very hard to withstand such a situation—therefore there is room there to say perhaps he is coerced, although I believe that once they see a person like that and say to him, listen, with two witnesses, yes, you are going to die for this, he will not say “yes, and nevertheless I am doing it” and then do what he does. It may be that he will do it quietly and there will never be witnesses. Once there are witnesses and they warn him, he will never say “yes, and nevertheless I am doing it” in order to get himself killed. Right, and therefore indeed it did not happen. That is what the Mishnah says: a court that executed once in seventy years is called destructive. It did not happen. It is almost entirely theoretical. Okay? But I’m saying again: even if there were such a person, with two witnesses and warning and all that—if it is clear that he simply does not understand why this thing is forbidden at all, all this stuff, and it is obvious that he does not believe in the Holy One blessed be He, not in Sinai, not in the Torah, he does not understand what you want from his life at all—then he is coerced and exempt from punishment, regardless of the question of warning and testimony. Okay?