The Periphery of Halakha – Lecture 6

Table of Contents

• Practical necessity versus the prohibition of gentile courts, and the failure of private systems
• The party of the judges versus the party of the halakhic decisors: forced interpretation versus a wink
• Institutionalized willful blindness and the proposal of honesty: “on the table” and “fully permitted, not merely overridden”
• Courts in Syria: precedent, the limits of precedent, and what we can learn from it
• The Chazon Ish and Rabbi Ariel: rejecting the analogy to an alternative legal system
• Expanding the meta-consideration: “there’s no choice” even without danger to life
• Not possible and not intended: illustrating the criterion of “not possible” and distinguishing it from the present case
• The distinction between a halakhic permission and an extra-halakhic consideration: “not possible, but intended”
• First-order ruling versus second-order ruling, and Modern Orthodoxy
• Three formulations for a meta-halakhic justification: clash of values, aveira lishmah, and “the Torah was not given to ministering angels”
• Criticism of the Netziv and Rabbi Kook on acting for Heaven’s sake, and emphasizing the centrality of the outcome
• Analogies from law: a manifestly illegal order, Dworkin, and conscientious objection
• The question of authority and a limited permission to use gentile courts for enforcing Torah law

Summary

General Overview

The speaker presents three examples in which it is hard to implement Jewish law in its straightforward sense, and therefore strained interpretive solutions or willful blindness develop. At the center is the prohibition of going to gentile courts in relation to the Israeli court system. He argues that the simple halakhic truth is that using the state’s legal system is prohibited, and even a severe prohibition, but in practice there is no workable option of alienating oneself from that system without descending into anarchy, violence, and private police forces. He rejects both the “party of the judges,” which tries to manufacture implausible interpretive permissions, and the “party of the halakhic decisors,” which keeps using the system with a wink. Instead, he proposes honesty: to say openly that halakhically it is forbidden, but practically it is unavoidable, and to ground this in a meta-halakhic theory of extra-halakhic considerations such as conflicting values, aveira lishmah, and “the Torah was not given to ministering angels.”

Practical necessity versus the prohibition of gentile courts, and the failure of private systems

The speaker says there is no practical way for a citizen in a democratic state to alienate himself from the Israeli legal system and give up any influence over legal discourse and the values embodied in it. He describes how the Haredi attempt to avoid the system leads to riots, loss of control, and anarchy, especially in conflicts between different groups such as Belz versus Gur or Lithuanians versus Gur, and even within the same group, as seen in the Ponevezh conflict and the split among the Lithuanian camp into the “Jerusalem faction” and the “Bnei Brak faction,” also nicknamed “the haters and the terrorists.” He presents a reality of commandos, private police forces, and institutionalized violence, including proposals to force a bill of divorce through thugs, as a problematic model of a “Torah state” that simply does not allow normal life to function.

The party of the judges versus the party of the halakhic decisors: forced interpretation versus a wink

The speaker describes two common ways of dealing with the problem: artificial interpretations that force the necessary step into the halakhic framework, or else shutting one’s eyes. He attributes to those he calls “the judges,” such as Bazak and Elon, the claim that there is no halakhic prohibition in participating in the legal system, and he presents Shochetman as an intermediate case, but says these interpretations simply do not hold water. He argues that the straightforward halakhic position is that there is indeed a prohibition, even something “like idolatry” in the sense of accepting an alternative legal system, and therefore “the halakhic decisors, almost to a man,” prohibit it—Religious Zionists and Haredim of almost every stripe—aside from exceptions who in practice join these implausible interpretations.

Institutionalized willful blindness and the proposal of honesty: “on the table” and “fully permitted, not merely overridden”

The speaker points out that even the “party of the halakhic decisors” needs the courts, but does so in silence, with a coexistence between theoretical sharpness and practical participation by “the best of the public,” including God-fearing people. He cites Rabbi Brandes’ term “the wink” and presents this shutting of the eyes as institutionalized and systematic—to the point that many Haredim now study law in academia, something that would have been unthinkable twenty years ago. He argues that shutting one’s eyes is not honest and leads to a loss of trust in an age when sources are accessible, and so he proposes saying honestly: interpretively speaking, this is forbidden and there is no halakhic permission, but “we have no choice,” and therefore it should be treated as something fully permitted rather than merely overridden, in a full way and not as a policy of multiplying private religious courts, because a legal system requires uniformity, governmental backing, coercive power, and clear rules.

Courts in Syria: precedent, the limits of precedent, and what we can learn from it

The speaker presents the Talmudic topic of courts in Syria in tractate Sanhedrin as a case in which “there were ignoramuses” and no qualified judges, and therefore it was permitted to appoint laymen to judge. He argues that even if this is a source in the Talmud, it does not turn the consideration into an internal halakhic one, because the Talmud itself does not bring a verse or an exposition that permits it, but rather “the sages decided” this because without a judicial system society cannot function. He adds that one cannot learn from courts in Syria to a sweeping permission for the Israeli system, because here we do have qualified judges; it is just that the public does not accept Jewish law as binding law. In addition, here we are dealing with the construction of a sophisticated alternative legal system, with the training of jurists, legislation, and constant development, not with occasional ad hoc judgments.

The Chazon Ish and Rabbi Ariel: rejecting the analogy to an alternative legal system

The speaker adds something he did not mention last time: the Chazon Ish writes explicitly, and Rabbi Ariel proves in his articles in Techumin volume 1 and volume 2, that the permission of courts in Syria is limited to occasional and sporadic judging, not to justifying the establishment of an alternative legal system that replaces the Torah. He presents this as a consensus “on both sides of the divide,” Zionist and non-Zionist alike, and says the attempt to derive from this a permission for the Israeli system is “an intellectual joke” and “nonsense.” He concludes that from here there is no direct halakhic justification and no source in the Talmud that permits the reality of an alternative legal system in a state where there are Torah scholars fit to judge.

Expanding the meta-consideration: “there’s no choice” even without danger to life

The speaker returns to his claim that the Talmud would have made a similar consideration had it recognized a democratic situation in which “the king is us” and the public determines values and laws, rather than a situation of dina d’malkhuta dina in which one obeys the legislation of an external king. He says the choice is between withdrawal and alienation, which lead to social disintegration, and cooperation despite the prohibition, and therefore only the second option remains. He emphasizes that the main novelty is not that when “there is no choice” one violates Jewish law, but rather the definition of “there is no choice” as a state of pas nisht—something that just doesn’t work—and of unreasonable human life, and not only a situation of mortal danger.

Not possible and not intended: illustrating the criterion of “not possible” and distinguishing it from the present case

The speaker brings the Talmudic topic of “not possible and not intended” in tractate Pesachim, about passing by an idolatrous perfume shop, and explains that the Talmud permits it when there is no other route and the person does not intend to smell the fragrance, even if his purpose is an ordinary need such as shopping. He adds in the name of the medieval authorities (Rishonim) that even if there is an alternative route that is half a kilometer longer, one may still choose the shorter route, because that is still considered “not possible” in the sense that allows the act to remain in the category of “unintended.” He applies this as an example of permitting the consumption of art that contains immodest sections when one’s purpose is the art and not those sections, and notes that Rabbi Avraham Stav wrote about this and took criticism for it, while he himself argues that Stav was actually too stringent.

The distinction between a halakhic permission and an extra-halakhic consideration: “not possible, but intended”

The speaker says that the example from Pesachim is different from going to the courts, because there there is a halakhic mechanism of “unintended action,” whereas here there is no halakhic permission: the person intends to use the legal system, and the reality is “not possible, but intended,” in the sense that there is no reasonable alternative even though the situation does not rise to danger to life. He argues that the social and practical reality of a democratic state justifies an extra-halakhic consideration that allows violating the prohibition of gentile courts even though there is no parallel halakhic mechanism. He says that the sages and the medieval authorities did not permit this because they did not know a situation of a secular public that does not accept Jewish law but still requires civic participation in the legal system.

First-order ruling versus second-order ruling, and Modern Orthodoxy

The speaker draws a distinction between second-order ruling, which clings to precedents in their simple form and therefore would prohibit even today, and first-order ruling, which applies the mode of thought and the principles emerging from the sources even without a direct precedent. He says he is not relying on courts in Syria as a halakhic precedent for the conclusion, but as evidence that the sages of the Talmud themselves used a meta-consideration of sustaining society. He defines his approach as Modern Orthodoxy in the sense of loyalty to Jewish law while applying principles even where there are no precedents, and presents this as an alternative to Reform, which is not committed to Jewish law.

Three formulations for a meta-halakhic justification: clash of values, aveira lishmah, and “the Torah was not given to ministering angels”

The speaker offers three formulations which are not necessarily substantively different, but provide different “melodies.” The first is a clash between the halakhic value of the prohibition of gentile courts and the social-moral value of maintaining an effective legal system, and he argues that in such a clash there is no a priori rule that halakhah automatically prevails, because the moral value too is the will of God, and therefore the decision is itself religiously legitimate. The second is aveira lishmah, based on the Talmud in tractate Nazir 23, and he emphasizes that it remains a transgression, but it may be done for the sake of preventing destructive outcomes, with examples such as Yael the wife of Heber the Kenite and the daughters of Lot, whom the Talmud praises, without any orderly halakhic permission, even when set against the three cardinal sins. The third is the principle that “the Torah was not given to ministering angels,” meaning that the Torah is aimed at proper and reasonable human life, and if a certain interpretation requires unreasonable life, then that is not what the Torah is demanding.

Criticism of the Netziv and Rabbi Kook on acting for Heaven’s sake, and emphasizing the centrality of the outcome

The speaker cites the Netziv and Rabbi Kook, who argue that aveira lishmah is permitted only when done with pure intention for the sake of Heaven, and he calls this a mistake that misses the core idea of aveira lishmah. He argues that the permission depends on the result and on avoiding irreversible destruction, not on the intention of the person acting, and gives the example that even if Yael had been in love with Sisera, from the standpoint of the outcome the act still needed to be done in order to save Israel. He stresses that the act does not become a commandment; it remains a transgression, but the outcome makes the transgression necessary in order to prevent catastrophe.

Analogies from law: a manifestly illegal order, Dworkin, and conscientious objection

The speaker compares the idea of violating Jewish law to cases in secular law where one violates legal directives or refuses to obey an order. He distinguishes between a manifestly illegal order, as in Kafr Qasim, and conscientious objection, and presents Ronald Dworkin, who distinguishes between rules and principles and argues that fundamental principles obvious to the legal community are part of the law even without written anchoring. He describes one possibility of seeing recourse to the courts as a decision in which the principle of maintaining a functioning society serves as a foundational principle that nullifies the prohibition in the sense that “there is no conflict,” or alternatively as a decision in which an extra-halakhic principle overrides an existing prohibition, similar to conscientious objection.

The question of authority and a limited permission to use gentile courts for enforcing Torah law

At the end, a question is asked whether the decision to go to gentile courts requires a halakhic ruling from a great Torah authority. The speaker responds that in Jewish law there is indeed a permission to go to gentile courts when the litigant is violent or refuses to comply with the ruling of a religious court, in order to use the state’s enforcement power to compel Torah law, but this requires authorization from a religious court. He clarifies that this is a completely different halakhic mechanism from his own proposal, which is a sweeping permission to use the state courts without turning to a religious court at all, even at the price of accepting a non-halakhic result, out of preference for a system with teeth over a “correct” system with no power of enforcement.

[Rabbi Michael Abraham] Last time I talked about the considerations regarding the prohibition of going to secular courts in the Israeli court system, and I brought three examples that can be treated similarly: saving a non-Jew’s life by desecrating the Sabbath, waiving acceptance of the commandments during conversion, and using the courts in the State of Israel. What all three have in common is that in all these contexts there are difficulties in applying Jewish law in its simple sense, and so interpretive suggestions arise—strained is an understatement, actually impossible in practice—in order somehow nevertheless to fit the necessary step into the halakhic framework. And what I proposed in the context of secular courts—and regarding the other two contexts I agree less—is to use some kind of overarching consideration. In that sense this is a peripheral category, because it is some kind of consideration that does not belong to Jewish law, an external consideration to Jewish law, that can intervene and determine for us that we should nevertheless do something even though apparently it runs against what emerges from the ordinary halakhic sources.

And my claim basically was the following. If I focus for a moment on the prohibition of secular courts, my claim was that with regard to using the courts or participating in the legal sphere in the State of Israel, on the one hand it is somehow obvious that we have no practical option not to do it. Meaning, to alienate ourselves from the legal system in Israel in a democratic state—I’m not even talking about connection to the Jewish people as a whole and all kinds of things like that, I’m talking right now about a citizen of a democratic state—it is not reasonable that such a citizen should deny himself influence over legal discourse, over the values expressed there, and so on. And therefore somehow the constraints of reality are very clear.

You can also see the consequences, as I said, of the decisions of those who decide to alienate themselves from the legal system. We end up with all the lawlessness and the Haredi loss of control, where they try somehow not to recognize the legal system, and so we arrive at a kind of anarchy and inability really to conduct proper life, certainly when you are dealing with different Haredi groups. Only within the same group is there perhaps an agreed religious court, and it has social power too to impose sanctions on the relevant parties. But if it is a dispute between Belz and Gur, or Lithuanians and Gur, then the situation becomes harder. Although, as I said, even within the group itself, like the dispute inside Ponevezh, you reach similar problems, and as a result today it is no longer really the same group itself. Meaning, the Lithuanian group itself has already split into what is called the Jerusalem faction and the Bnei Brak faction, or “haters” and “destroyers,” or all those funny nicknames—something that basically began from some kind of loss of control, I don’t know if it began there, but it was greatly strengthened in light of the legal loss of control in that context of the dispute around Ponevezh.

So it seems to me that all these indications show that we all understand that this is not really an existing option—to estrange ourselves from the legal system and try to create private alternative systems. I talked about the commandos and private police forces and the violence that arises, even institutionalized violence directed by religious courts. I talked about the suggestions I got to force a divorce bill from someone who fled to America, by sending some group of thugs to beat him until he gives a divorce bill. Ostensibly, a real Torah state—in that sense there’s no problem with it. But it’s a very problematic business. Private police forces are a problematic thing. So the distress is clear.

What do we do with this distress? Usually what is accepted is one of two ways. I already said this last time—I’m just summarizing, because this is really the core of my argument. One way is to offer forced, artificial interpretations that somehow manage to push the required behavior into the halakhic framework. That is what is usually done—what I called “the judges,” yes? Those who support participation in the legal system and argue that there is no halakhic prohibition in it—these are the judges: Bazak, Elon, and the like. Schochetman, I said, is an intermediate case. Rabbis or halakhic decisors do not agree with this, and in my opinion rightly so. These interpretations really do not hold water. The simple halakhic truth is that there is a prohibition here, and perhaps even a serious prohibition. Again, not idol worship in the literal sense, but like idol worship, because you are essentially accepting upon yourself some alternative legal system. We are not talking here about some idol that people worship, but still, the idea of idol worship exists here too. And therefore the halakhic decisors almost unanimously hold the position that this is forbidden. Religious Zionists, Haredim of all shades—almost, except for a few isolated exceptions. And again, those who are exceptions are simply those who join the party of the judges, meaning they offer interpretations that are patently unreasonable.

And my feeling was that what is more correct to do—one more sentence about the party of the halakhic decisors as distinct from the judges—is that the people in the party of the decisors also make use of the courts, of course, but it is forbidden, so they close their eyes. They live in a kind of duality, where on the one hand this is a serious prohibition, you can give talks and lectures and come out sharply somehow against the whole matter, and yet the best of the public participates in legal discourse and legal practice, including God-fearing people. I’m not talking about marginal lightweight types and the like. And no one says a word. Meaning, concretely, nothing. In lectures, in theory, there are lots of declarations and all that, but in practice no one says a word. It is some kind of eye-closing. I even quoted Rabbi Brands, what he called a wink. He said it in the context of conversion, but it exists just as much in the context of using the courts. Because it is clear to everyone that you cannot do otherwise.

I said more than that: I mentioned the Haredim, for whom in practice the main profession Haredim go to study today in academia is law. If you had said that twenty years ago, when this phenomenon more or less began, people would simply have stared at you and hospitalized you, because it would have been unthinkable that such a thing could happen. And the fact is that it happened. Meaning, the eye-closing is done in a very, very non-random way, not casually, but rather this is institutionalized and systematic eye-closing, because people have no way to reconcile their halakhic ideological view with the constraints of practice. There is no way to do it.

So on the one hand, the recommendation of what I’ll now call the party of the judges and the party of the halakhic decisors, okay? The recommendation of the party of the judges is not only compelling—there is no other way—but on the other hand their interpretation is completely unreasonable; there is no halakhic permission. So what do you do? Apparently the only thing you can do is really close your eyes. But closing your eyes is also a very problematic option. It is problematic, first, because it is not honest, and second, because this lack of honesty also has consequences. Since today, all in all, people are exposed to sources and everything is open and there is internet and whatever you want, today you can no longer keep the cards close to your chest. Today everyone knows; they will laugh at you openly at the table. You cannot hide information from people. And therefore, in my opinion at least, that option—even if once someone thought it was the right option, and to this day there are many who think so—I think it is not an option. It is not an option because it leads to severe problems, to loss of trust in halakhic statements. And therefore I think esotericism, or a wink, or eye-closing is not really an option.

So what is? What I proposed is to put things on the table, not to wink. To put things on the table—what does that mean? To say: look, interpretively, interpretive honesty requires reaching the conclusion that this thing is forbidden. There is no halakhic permission. None. I find no source that allows this. In such a situation, we have no choice but to do it. And I’ll say more than that: on the level of full permission, not deferred necessity. Meaning, not even to minimize it as much as possible, not to do it with the left hand and I don’t know what, and with the right foot but with your eyes closed—but to do it openly, fully, not to resort to private religious courts. I think this is not correct policy, to do it even where it is possible. Again, it could be that if two people agree and both belong to the same community, maybe that is fine. But in principle, as policy, I think it is not right. A legal system needs to be a uniform system, with state control and state backing, with effective power to enforce, with clear rules, with an ability to deal with reality—which Jewish law today doesn’t really have so much. And therefore I think this is not really an existing option.

And so what I really want to say is that we need to be honest. To be honest means not to close our eyes and not to wink. To say: friends, this is forbidden. The judges are mistaken—the party of the judges, yes—in the interpretation they present. On the other hand, they are right in that we have no option to do anything else, that it is impossible, irrational, to behave otherwise. And therefore there is no choice—“it is a time to act for the Lord,” whatever you want, however you define it; I will define it in a bit later—we are obligated to do it despite the fact that it is forbidden. A somewhat problematic statement, a very problematic statement, a very radical statement. But it seems to me there is no escape from putting these things on the table. And my claim in this series is that this is anchored in halakhic theory—not in Jewish law itself, but in halakhic theory.

My claim is that in halakhic theory there are extra-halakhic considerations, peripheral to Jewish law, that take part in halakhic decision-making. And therefore I am actually forced to deal with all these issues. Before I continue and get a bit more deeply into what exactly this consideration is, what its meaning is, how to anchor it in theory or in the halakhic outlook—and again, if you are not “lite” and you are committed to Jewish law and all those labels that always get attached to someone who says things like this—then I want to argue that those labels are not justified in this context. A person who is completely faithful to Jewish law can do this—not only can, but must do this. More than that, I say everyone does do this. They do it—they just wink. They are not willing to put it on the table. They are basically doing it. So if you are doing it, and you don’t think it is wrong to do it, then say so. Be honest and say it.

Now why do this? The question of why it is permitted to do this can also be directed toward the party of the halakhic decisors, not only toward me. The fact that they do not say it, but still do it—therefore the question of what the justification for this is, if there is a justification, can be directed at them too and not only at me. All I am doing is calling for honesty and putting it on the table. But in terms of what is actually being done—they do it too. So the question is how exactly this business works, how to anchor it in halakhic theory.

At the end of the last lecture I touched a bit on the issue of the courts in Syria. In the Talmud in Sanhedrin, the Talmud says that in Syria there was a situation where there were ignoramuses; there were no judges fit to judge. And in such a situation one can appoint people unfit for judgment, ordinary laymen, and have them judge there in place of proper judges. And that is the law of the courts in Syria. That is the accepted conception. There are some disputes about it, but that is the accepted interpretation of the law of the courts in Syria. People argue that if so, this can be a source to permit recourse to the legal courts in the State of Israel today, because necessity permits or justifies recourse to courts. So we basically have a source in the Talmud, and if so then this is not a peripheral category but part of Jewish law. It appears in the Talmud.

Here I said several things. First of all, my claim was that even if we assume indeed that there is some source in the Talmud—soon I will challenge even that—it still does not really mean there is no room for such considerations in our halakhic conduct. It only means that the Talmud already made those considerations. It is not we who make them; the Talmud itself made them. Because even when the Talmud permitted the courts in Syria, it brought no verse; there is no source that justifies it. “Before them and not before laymen,” “before them and not before non-Jews,” and all those expositions remain in place. So how is it permitted in the case of the courts in Syria? There is no verse at all. The sages decided it was permitted. Why? In my opinion, simply because of the consideration I said. So it is not true that the moment it appears in the Talmud, this becomes an internal halakhic matter. No. All that happened is that the extra-halakhic category was already brought in during the Talmudic period. Fine, excellent. So now I will simply use what the Talmud did. But it is not true that there is no room for such considerations. I do not need to make those considerations because the Talmud already made them.

Suppose, hypothetically, there had not been a discussion of the courts in Syria in the Talmud. Some would say: then no—we have no halakhic source, it can’t be done. I argue that is incorrect, because even when there is such a discussion, it has no real basis, because there is no exposition, no biblical source that justifies it. Rather, the sages did it because of this very consideration itself. Now suppose there had not been such a discussion in the Talmud because no need arose; there was no situation that required this kind of discussion or conclusion. Today there is. So I am supposed to make this consideration because ultimately it is the right consideration. Meaning, my claim is that the existence of the discussion does not remove the fact that this argument is an extra-halakhic argument. Not everything that appears in the Talmud is a halakhic discussion. I will give examples later. Therefore I think that the fact there is a precedent does not mean I am mistaken in saying that we are dealing here with a peripheral category, an extra-halakhic category. Not true. It is an extra-halakhic category that the Talmudic sages themselves already brought into their halakhic deliberation.

But even if they had not done it, then I would have had to do it. And therefore in that sense the source in the Talmud neither adds nor subtracts from my basic argument. It soothes the nerves of various conservatives. There are conservatives who cannot cope with this if you don’t have a source in the Talmud, and if there is a source in the Talmud they calm down, so fine, there is a source in the Talmud. But that does not solve the principal argument. On the principled level, what we see here is that there is room for the kind of consideration I presented earlier. True, according to Jewish law it is forbidden, but we have no other option, and therefore we will do something that is forbidden according to Jewish law. That is the claim. And the discussion of the courts in Syria does not take that away. On the contrary, it illustrates it.

That is what I say even if the discussion of the courts in Syria were dealing with a situation similar to the one we face. But what I also claimed is that this is not correct. You cannot learn from the discussion of the courts in Syria to our case in a simple way. Why not? So I said there that the precedent of the courts in Syria is unlike our case because there, there were no judges fit to judge. Here, we do have judges fit to judge. It is not an option because the public will not accept them and the halakhic system as the law in force in the State of Israel, because there is a secular public, a public not committed to Jewish law, and it is not willing to take Jewish law as the binding canon, as the binding law in force. But it is not true that there are no qualified judges. Today there are Torah scholars who can sit and judge. Therefore learning from the courts in Syria to us is very, very non-trivial.

Now I will add something much more severe that I did not say last time, and this is already an addition. The Chazon Ish talks about this, and Rabbi Ariel in his article in Techumin—in volume 1, volume 2, he has two articles there, and he has an exchange there with Judge Bazak. Rabbi Ariel proves this from many places. This is basically his thesis: that the entire permission of the courts in Syria is permission to judge on an occasional basis. Meaning, sporadic cases. Meaning, two people come, they have no one before whom to litigate. Okay, so we’ll seat two laymen there, or three laymen, and they’ll judge between them and decide what seems reasonable to do. But under no circumstances is there any room to find halakhic justification for building an alternative legal system. Here we are replacing the Torah. We are not saying: look, there is no choice, we have no Torah scholars. We are creating an alternative legal system, training jurists for years in specialization and work and so on to specialize in the alternative legal system. Meaning, these are people who studied for many years. They are not laymen—but they studied for many years not the correct legal system, not Jewish law, but the legal system we invented. Okay? That has no permission in the law of the courts in Syria. The Chazon Ish writes this explicitly, and Rabbi Ariel repeats it, so you can see this is from both sides of the divide, Zionist and non-Zionist. Meaning, there is a consensus here on this issue. There is no possibility of learning from the courts in Syria to our case.

In our case we are dealing with an alternative system that throws Jewish law into the trash—not because we do not know Jewish law, or because there is no one who can judge according to Jewish law because there are no Torah scholars. There are Torah scholars. We know what Jewish law says. There are people who can judge. And we decided to establish an alternative system, to train people for years to learn it, refine it, improve it, legislate laws; the Knesset keeps expanding it all the time. Meaning, this whole business is outright rebellion against the kingdom of Heaven in the greatest possible way. This is very difficult to see as something you can derive from the courts in Syria. In that sense Rabbi Ariel is completely right. That is his central argument against the party of the judges—that this simply cannot be. There is no such thing. You cannot learn it from the courts in Syria.

So there is both the argument that we have qualified judges, unlike Syria, and the argument that there the issue was not an alternative legal system. The system was a halakhic system, just that the people didn’t know it very well, so you place people who don’t know it and let them do what is as close as possible, or whatever logic seems reasonable to them, because we have no people who know. Here it is doubly bad. We have people who know how to judge and adjudicate; we can put them in place. Why resort to laymen when there are certified judges fit to judge? That is point one. Point two: here we have a full legal system, alternative, rich. We are all occupied with it, building it, refining it, studying it, training people to work in it. This is not the courts in Syria. To bring this from the courts in Syria is an intellectual joke, simply a joke. It does not hold water. It is simply nonsense, simply nonsense. And therefore this whole thing is just ridiculous.

Fine. So if that is so, then we have no halakhic justification, and we also do not have a source from the Talmud regarding the courts in Syria. It is not a source. So what do we have? I return to what I said earlier. What we do have is to do ourselves what perhaps the Talmud did not do. Why? Because if the Talmud had stood before a situation like the one we stand before, it too would have made the same consideration. If the Talmud had known a situation where there is a secular public that does not recognize Jewish law and does not want Jewish law and has developed another legal system, and on the other hand we have no option not to participate in the system because this is not a king—I said that “the law of the kingdom is law” is something else, because there the king legislates and we obey. It is not a democratic state where we take part and there is public debate and we determine values and legislate and elect the legislators; there is an entire sphere of activity around this. Rather, the king decreed and we only want to prevent a situation where people swallow one another alive, and so we obey what the king decreed. Here it is not like that. Here the king is us. The king is us, all of us together.

Therefore if the Talmud had known such a situation—it did not know such a situation—if it had known such a situation, in my opinion it would have made the consideration of the courts in Syria apply to our case too despite all the differences. Even though this is an alternative legal system, even though we have judges who can judge, Torah scholars, and there is no need to appoint laymen because there is no one to judge—all true. And still we have no option to do it. Why? Because the public does not agree. So what can we do? We can either separate and alienate ourselves from the legal system, or cooperate with it despite the fact that it is forbidden. There is no option. And since alienating ourselves is not an option—I talked about the consequences of that—what remains is only to cooperate despite the prohibition.

To cooperate despite the prohibition is in that sense the way out. In that sense the courts in Syria are indeed a precedent. Despite all the differences, even on that plane the courts in Syria are still an innovation that cannot be anchored in the rules of Jewish law. Why did they say there was permission to have laymen judge there? Because of the consideration I am talking about here, because without an effective legal system society cannot function. We have no qualified judges? Fine, then we’ll appoint laymen—what can we do? The alternative is that society falls apart. That cannot be. That principle can be learned from the Talmudic discussion of the courts in Syria. Not again—the situation is not the same situation. And if we treat the courts in Syria as a halakhic source, then we have no halakhic source for our situation, because what they permitted was not the use of an alternative system and not a situation where there are expert judges. But if we understand the meta-consideration of the courts in Syria, the basis that says that although I have no halakhic permission, if I have no alternative then there is no choice, I will do something that is halakhically forbidden—that I can learn from the courts in Syria. But that itself is of course not a halakhic consideration. It is the same extra-halakhic consideration that the Amoraim made then; I am extending it to today.

And in that sense one can see the courts in Syria as a source of inspiration. But this does not mean that the consideration I am making now is an internal halakhic consideration. That is simply not true. Rather, I learn: what can you do? I cannot uphold it. Now note: what is called “I cannot uphold it”? “I cannot uphold it” does not mean I will die, or someone else will die. Saving life overrides everything—that is a halakhic principle. I do not call that an extra-halakhic consideration. If there were danger to life here, danger to life overrides the whole Torah—that is an ordinary halakhic principle; it has sources, we learn it, but it is an ordinary halakhic principle. I am not speaking here about a halakhic principle of override. A halakhic principle of override says that there is a clash between two values, and there is a halakhic solution regarding what to do, which one prevails. No. I am speaking here of a consideration that is extra-halakhic; it has no source. But what can I do? I have no way to implement Jewish law.

Now what does “I have no way” mean? That is a very important point. What does it mean, “I have no way”? I do have a way. No one will die. So I won’t live here in a Jewish society. I’ll go to Australia; there “the law of the kingdom is law,” and I’ll obey the law of the kingdom and everything will be fine. Or I’ll establish for myself a system of private religious courts and suffer the consequences, with all the anarchy this creates—I’ll suffer the consequences. “There is no wisdom and no understanding against the Lord,” meaning this is a very, very serious prohibition. What, would you desecrate the Sabbath in such a situation? If there is a prohibition, there is a prohibition—what can you do? Meaning, there is a much stronger innovation here than appears at first glance. The innovation is not only that when there is no choice, you violate Jewish law. The innovation is in the question: what is called “there is no choice”? “There is no choice” does not mean that otherwise I will die. “There is no choice” means: it just doesn’t work. That is what “there is no choice” means. “It doesn’t work” meaning it is not reasonable to live in that way. That’s it. A consideration—meaning, a pretty far-reaching statement. That is the greater innovation, more than the first innovation.

The innovation that when there is no choice you violate Jewish law—if the “no choice” is danger to life, there is no innovation there at all. Fine, danger to life overrides the whole Torah—that is obvious. Therefore the main innovation is not that if there is no choice you violate Jewish law. The main innovation is what counts as “there is no choice.” That here such a situation too can be considered “there is no choice.”

Okay, I’ll perhaps bring an example that sharpens the point a bit. This came up on my website too and elsewhere. There is a discussion in tractate Pesachim called “it is not possible and he does not intend.” What does that mean? Suppose someone is going and needs to get somewhere, I don’t know, to buy something, something like that. Now on the way there is a shop of idol worshippers selling fragrances for idol worship. Now it is forbidden to smell incense of idol worship. Okay? Now if I pass by there on the way, I will have to smell that odor. I have no choice. So the Talmud says: “it is not possible and he does not intend”—if you are not going there in order to smell. You are going because you need to reach your destination, and it is also not possible otherwise; you have no other road—“there is no other road,” in the language of the Talmud—then it is permitted to do so.

Although, again, notice: the need for which you need to reach that destination—why do you need to get to the place you want to reach? Because you need to buy something. Just that. Not some life-and-death need. But because that is your goal, and you do not intend to smell the incense of idol worship, that is called “he does not intend.” And this is also called “not possible.” Why is it called “not possible”? It is called “not possible” because you have no other route. Fine? So don’t go and don’t buy; stay with the old chair. Why do you need to buy a new chair? Why is that called “not possible”? We see there in the Talmud that such a situation is called “not possible.” This is an enormous novelty.

More than that, the medieval authorities there discuss what happens if I do have another route to reach that same destination—say, the chair shop I want to get to—and that route is clean; there are no shops of idol worshippers there. I have another route. Except that the other route is half a kilometer longer. This one is one kilometer and that one is one and a half. Okay? The medieval authorities say there in Pesachim that even in such a case you may go by the shorter route and smell the incense of idol worship. That too is called “not possible and he does not intend.” What do you mean, “not possible”? Go a kilometer and a half. No. That is called “not possible.” Once it requires an additional cost from me, that is called “not possible.”

So here again, the big innovation here is not the question that when it’s not possible, then it’s not possible. The innovation is in the criterion: what counts as “not possible”? Here there is something about which, on the face of it, I would say: what do you mean “not possible”? Go a kilometer and a half, or don’t buy the chair. What is the problem? There is an alternative. Sit on your old chair or on the floor. This is idol worship—one must die rather than transgress. The prohibition of idol worship, even its accessories, is in the category of one must die rather than transgress. Okay? No—the medieval authorities say it is permitted.

But here the similarity to our case ends. Why? Because there you are doing it because you are in a state of unintentional action. The rule of unintentional action is a rule that has halakhic sources, meaning that unintentional action is something permitted. If you do something unintentionally—for example dragging a bench and making a furrow, but you are dragging the bench in order to move it elsewhere, not to make the furrow—on the Sabbath. That is called unintentional action, and so it is permitted. Even though making the furrow is a Torah prohibition. Okay? Building or plowing, depending on whether it is in a field or in a house, but it is a Torah prohibition. Still, if you do it unintentionally, it is permitted.

So those medieval authorities there—it seems to me that the plain meaning of what they say in the discussion of “not possible and he does not intend” is as follows: if you have a long route and a short route—suppose both routes were the same length, say, okay?—and you chose to go by the route with the fragrances of idol worship, that would be forbidden. Why? Because it is obvious that if you go there, you are going in order to smell; otherwise why didn’t you go the other way? There is no price; the other route is completely equivalent. Why didn’t you choose it? Why did you choose this route? A sign that you intend it. But if the other route is longer—one and a half kilometers—again, you can manage that, you can walk one and a half kilometers instead of one kilometer, it is not some life-and-death issue. But that is enough to define me, when I go on the shorter road, as someone who goes on the shorter road because it is shorter, not in order to smell the fragrances of idol worship. You cannot say to me, “Listen, you intend to smell the fragrances of idol worship, otherwise why are you going here?” Why am I going here? Because it is shorter. That is why I am going here, not in order to smell the fragrances of idol worship. So if that is the case, I remain within the category of unintentional action, and it is permitted. Understand?

Meaning, here the consideration is that the “not possible” is indeed a very liberal “not possible.” What do you mean “not possible”? Of course it is possible—go one and a half kilometers. But the role that “not possible” plays there is different from here. There the role of “not possible” is only to show that I am still in fact not intending it. Because if I went by the shorter route, then you cannot say that I went there in order to smell fragrances of idol worship, because I went because it is shorter. I didn’t want to take the longer route. You cannot prove that I went in order to smell. I went because it is shorter. If both routes were the same and I went by the problematic route, then they say to me: listen, you went there for the smell, don’t tell stories. And therefore it is forbidden because it is intentional, and then it is a Torah prohibition of idol worship, one must die rather than transgress. But if the second route is a kilometer and a half, you are allowed to commit a prohibition related to idol worship, one must die rather than transgress. Fine? Why? Because it is unintentional. You did not intend it. When you do not intend it, it is permitted.

Okay, fine. I did that very briefly, and one could elaborate a lot here because by the way it has many implications. For example, people have often asked me about consuming art—a film or a book—that has immodest passages in it. Is it permitted to consume it? I argue yes. I argue yes, at least where this is worthwhile art, yes? Meaning, not that you are going there for there to be “no other route,” right? Meaning, if you are going for the pornography, then it is forbidden because it is intentional. But if you are going for the art, and on the way you also have to pass a shop with fragrances of idol worship—that is exactly “not possible and he does not intend.” You have no option to consume that art without that. You can choose not to consume it at all, but we saw in that discussion there that I can also choose not to buy the chair at all. That is not the issue. I decided that I want this art; it is important to me. Okay? The price is that on the way I smell fragrances of idol worship. If I do not intend that, and I really want the art and that is the price I pay on the way, then it is permitted.

Obviously this has very far-reaching implications for our time. And Rabbi Avraham Stav once wrote about this, maybe even with his father—I no longer remember whether it was alone or with his father, David Stav. And they got a lot of criticism and outrage over it and so on and so on. By the way, he wrote more moderately than what I am saying here; he qualified the permission even more, and in my opinion he was mistaken there—he was too strict. But he received a lot of criticism over this issue. And I think he is completely right; that is what emerges there from the discussion. By the way, very many people do this, and very few people know what the halakhic justification is for doing it, and what they do is essentially close their eyes, meaning they wink. But in this case the alternative is not to be honest and put it on the table, but rather there really is a halakhic permission. Meaning, in that sense I think this is a halakhic permission, not a consideration of “no choice.” And in that sense this example differs from what I am talking about in the lecture. Because what I am talking about here—I have no halakhic permission. This is not unintentional action, it is not something—I have no other halakhic permission. I do not. It is not unintentional action. I do it intentionally, but I have no choice.

And this is not “not possible and he does not intend.” It is “not possible and he does intend.” I do intend it, it is only impossible—and impossible not in the sense of danger to life, because then of course it overrides everything. Rather, impossible in the sense that otherwise life is problematic, society falls apart, society is structured in a problematic way. That is the “impossible.” And my claim is that in such a situation, even though there is no mechanism like unintentional action in the examples I brought, the impossibility still plays a role and can permit halakhic prohibitions. That is basically my claim.

You might ask: then why didn’t the medieval authorities and the sages permit the prohibition of secular courts for exactly that consideration? People always ask that. The answer is very simple: they simply did not know this situation. My claim is that if they had known the situation in which we find ourselves today, indeed I think they would have permitted this too. The situation they knew was the situation of the courts in Syria, and the fact is that there they permitted it despite the fact that it is a halakhic prohibition. Our situation is much more problematic, but from the standpoint of “not possible,” we too are in a situation of “not possible.” It is not possible. You cannot live otherwise. And therefore I argue that one can in fact permit this on the basis of an extra-halakhic consideration. That is basically my claim.

Now the question is really: what is this kind of consideration based on? How does this whole business work from the standpoint of the theory of Jewish law? After all, I showed you that in the Talmud they did this regarding the courts in Syria, and what I am doing is taking that same principle and extending it further. It cannot be a precedent in the sense of what I would call second-order ruling, but it can be a precedent in the sense of first-order ruling. Meaning, someone who sticks to precedents as they are—what I usually call second-order ruling—will not be able to derive from the discussion of the courts in Syria a permission for our case. Therefore I argue that all the halakhic decisors who forbid in our case, despite knowing the discussion of the courts in Syria, do so because they are second-order decisors. They cling to precedents as they are. In the Talmud there is no permission for an alternative system, as the Chazon Ish says, as Rabbi Ariel proves. I say true, there is no permission. But what the Talmud did, I will do today not on the basis of the Talmud but on the basis of the meta-consideration that existed in the Talmud. Not on the basis of the halakhic product the Talmud created, but on the basis of the way of thinking reflected in that product. I am now doing it myself. Not that I am relying on the Talmud. I can bring the Talmud as support for the idea that such considerations can be made, but I would do this even if there had been no discussion of the courts in Syria. Therefore I am not relying on the Talmud as a precedent. I can bring proof from that Talmudic passage to calm certain people who cannot cope with what I say unless there is Talmud behind it. But I am not really relying on the Talmud, because in terms of its bottom line it does not give what I want to apply today. And therefore this is definitely connected also to the discussion of first-order ruling and second-order ruling, which I won’t go into here.

Now this claim, as I said in the previous lecture too, is a claim of modern Orthodoxy, because modern Orthodoxy really is Orthodoxy that is prepared to apply halakhic principles differently from how they appear in the sources. It is still faithful to Jewish law; this is not Reform. The Reform person will say: Jewish law does not interest me, today it seems different to me, so I do differently. What I am talking about is not that. I apply halakhic principles even where I have no precedents. And in that sense it remains faithful to Jewish law. It is not that Jewish law doesn’t interest me, but rather that these are extra-halakhic considerations that take part in the halakhic or practical decision that I make.

And then once I—what is the gain in this whole matter, in developing the halakhic theory that I am about to get to? If I develop the halakhic theory and show that this is justified in halakhic theory—not in Jewish law but in halakhic theory—then this allows me to get rid of the need to wink or close my eyes. Because why do people wink and close their eyes? After all, they do what I propose. Everyone does what I propose, they just do not put it on the table. They are not willing to say openly: this is forbidden, but I close my eyes and do it anyway. Rather, what do they say? In theory it is forbidden, and in practice they close their eyes—silent in a thousand languages. And I say: if I can justify this in halakhic or meta-halakhic theory, it frees me from the need to wink and close my eyes. I say openly: halakhically this is forbidden, but there is a meta-halakhic theory that tells me there are situations of “it is a time to act for the Lord—they have violated Your Torah.” And this calculation can be made by any sage in any generation, not only by the Sanhedrin.

So to understand this a little more, I want to enter into the meta-halakhic theory itself. How can one justify this kind of decision to act against Jewish law—directly against Jewish law—without finding a permission? I have no permission. So one could present it in a few ways, and I am not sure they are completely different—there are in fact three ways, and it may be that they are really just different formulations of the same thing. But still, I will present the different formulations.

The first formulation is one that sees this situation as a conflict of values. And I spoke about that in the previous series on Jewish law and morality. What I am basically claiming is the following: I have the value of maintaining a proper society with an effective legal system, whatever it may be. I did not say the halakhic legal system, but rather there needs to be—of course it is desirable that it be the halakhic legal system, not only desirable, obligatory—but first of all there is also a value beyond that in the very existence of an effective legal system in every society. Like “the law of the kingdom is law,” everywhere, because without that you cannot sustain a proper society. That value clashes with the prohibition of secular courts. So here there is a clash between a halakhic value and a moral, general, social value—call it what you want.

Once there is a clash between values, as I said—I discussed this at length in the previous series and I won’t return to it here—once there is a clash between values, you can no longer say a priori that the halakhic value automatically prevails. Why? The moral value is entitled to its place just like the halakhic value; both are also the will of God, as I explained there. And now this is a clash, and I need to decide how much each value weighs, or who stands opposite whom, what the cost is of violating each of these values. And therefore, once I understand that the costs of the moral value are very, very heavy, then it may be that the moral or social value will prevail over the halakhic value, however severe the latter may be. And this is a severe violation in Jewish law, not some marginal violation. Secular courts are also a public, collective violation. It is the public as a collective that crudely goes against the whole halakhic system. This is not a technical matter; it is not some marginal sin or another that you can do with your left hand and solve the problem. There is an actual statement here: I am going with an alternative legal system, an alternative legal system, against all of Choshen Mishpat, everything we do in the yeshivot, the whole idea, everything—when I have ordained judges. Yes? And this is halakhically forbidden. I have no halakhic permission. I have no halakhic permission. And nevertheless I do it. That is a very hard statement, certainly on the public level.

So in order to do that, in the model of conflict, you need the value standing against it to be very strong too. And here the question is how to measure that and so on. Fine, that is a difficult question with no simple answers, certainly not orderly answers or any unequivocal criteria. But I discussed that in the issue of Jewish law and morality. So that is one way to view this clash and say that there is basically a clash here. And in a clash there are no rules. Sometimes this value prevails, sometimes that value prevails. Now again, when the external value prevails over the halakhic value, that itself is not a halakhic statement. Because that other value is external; it is not a halakhic value. So Jewish law does not deal with such a clash. Jewish law can deal with clashes between halakhic values, but when there is a system standing opposite the halakhic system, Jewish law itself cannot say what to do with that. Rather, this is a decision beyond Jewish law, extra-halakhic. And therefore I am speaking here about a peripheral system, okay? The influence of a peripheral system, and sometimes its decision against Jewish law. That is one formulation, a formulation of clash.

The second formulation—and as I said, the three formulations can be mapped onto one another, they are not really different, but they are different melodies, I would say—the second formulation basically says: this is a situation of a transgression for the sake of Heaven. What is a transgression for the sake of Heaven? The Talmud in Nazir 23 says: “A transgression for the sake of Heaven is greater than a commandment not for its own sake.” The Talmud brings there the example of Yael, the wife of Heber the Kenite, yes, who lay with Sisera in order to kill him, although she had no permission to do so, but it was a transgression for the sake of Heaven. And of course she receives praise for it, even though this is… what does “a transgression for the sake of Heaven” mean?

Now the later authorities have a very hard time with the discussion of transgression for the sake of Heaven. They are not anarchists like me—I enjoy every moment in discussions like these—but the medieval and later authorities find it very hard to swallow this discussion. This discussion basically says: violate Jewish law when it is really necessary to do so. And therefore, as a result, more than that, even without an instruction from a legal authority—it is simply the ordinary individual who is in the situation. Yael the wife of Heber the Kenite was probably not some great Torah scholar; she probably was not even Jewish. And yet she allowed herself to violate Jewish law because of a transgression for the sake of Heaven, because of some value that in her eyes justified it. So this is a very subversive statement, I would say, from an ordinary halakhic perspective. Therefore it is no wonder that many later authorities, especially, less so the medieval ones, but many later authorities try to narrow this rule and basically see it as some halakhic override rule—like a positive commandment overriding a prohibition or something like that.

Meaning, if you have a positive commandment against a prohibition—for example I am on Passover eve, and you have grain of the new crop, which is forbidden before the day of the wave offering, and on the other hand you have the commandment to eat matzah. So the positive commandment of eating matzah overrides the prohibition of new grain; you can bake matzah from new grain, violate the prohibition of new grain—why? Because a positive commandment overrides a prohibition. There are later authorities who treat transgression for the sake of Heaven as some kind of halakhic override rule, like a positive commandment overriding a prohibition, or other rules of override. That basically turns it into one of the ordinary internal halakhic rules. But that does not hold water in any way. It does not emerge from the Talmud. The Talmud knows how to say “a positive commandment overrides a prohibition.” It does not say that here. The Talmud speaks about a transgression for the sake of Heaven. A transgression for the sake of Heaven means that it is a transgression. And despite the fact that it is permitted, it is still a transgression. A positive commandment overriding a prohibition is not a transgression; it is a commandment. Here we are speaking about a transgression, and it is permitted to do it for the sake of Heaven.

More than that, the right—or even duty—to do this transgression is reserved for anyone in the situation, a layman, not some great Torah scholar. If he understands that this is what is required of him right now, that is what he does. And we see that this is not a simple halakhic definition. Beyond that, when I just look now at Yael the wife of Heber the Kenite, what permission did she have to do this? If indeed killing Sisera would save many lives, then maybe there would be room to say that it was permitted because of danger to life. But even there it is problematic. This is adultery, yes, sexual immorality. Where have we found permission for a married woman to have relations in order to save lives? I know of no such permission. So there is no genuine halakhic permission here. What the Talmud says there—“a transgression for the sake of Heaven”—is very nice, and you can say that this is a halakhic rule, but when you examine the example you cannot show me where the halakhic rule here permits it.

I will perhaps bring you another example, even more radical. The Talmud later on that same page, immediately afterward, brings the case of Lot’s daughters, who had relations with their father. And people perhaps do not know this enough, but the Talmud greatly praises them for what they did there. Although afterward—well, let’s say it—Moab and Midian, yes, one is criticized for saying openly that she did it. But as for the act itself, beyond the question whether one publicizes it or not, the act itself is perceived by the sages, at least in that Talmudic discussion, as a very positive act deserving of every praise. Why? This is written in the Torah itself. You do not need midrashim for this. The Torah itself brings their consideration. When they saw that the cities of the plain had been destroyed, they understood that humanity no longer remained—that humanity had been wiped out. That is what they saw around them, and that was their conclusion. And then they said to themselves: if we do not engage in forbidden relations with our father and preserve seed from him, then humanity is wiped out. That’s it. We are the last human beings left here. If we die, that’s it. There are no more human beings, no more humanity. And therefore they decided to preserve seed from their father. That was the decision. It is written in the Torah; this is not midrashim or anything. It is written in the Torah.

Now I ask: what halakhic permission was there to do this? Is there any situation in the world that justifies incest of a daughter with her father? I know of no source that gives halakhic permission for such a thing. By the way, not even this source itself. Because this source itself does not say in the Torah that it is permitted. The Torah merely describes what they did. The sages decided to praise them for it. In the Torah itself I do not see—at least I do not detect—some evaluative statement that the Torah praises them for what they did. On the contrary, I hear there some tone of criticism, I think. But certainly not a statement that this is a halakhic source, a paradigm to follow.

And indeed in the rules of Jewish law we know that nothing permits the three severe transgressions, not even danger to life. And certainly not a situation where it is not even danger to life, but only that no human beings would remain. After all, they did not save anyone’s life; they only prevented humanity from disappearing on its own. No person there was in danger such that you do this act to save him. So you cannot even call it danger to life. It is more like “He did not create it to be empty; He formed it to be inhabited,” some sort of consideration like what is brought in the context of being fruitful and multiplying, settling the world, leaving human life on the face of the earth. But this does not fit into the halakhic definition of danger to life. So all the more so, it is impossible to understand the halakhic justification for incest in such a situation. And the Talmud brings it immediately after the principle of transgression for the sake of Heaven and praises them for it, so the association is quite clear. The Talmud wants to tell us: this too is called a transgression for the sake of Heaven. There is no halakhic permission here at all.

So what is a transgression for the sake of Heaven? Of necessity, it means doing something without halakhic permission. There is no halakhic permission. How do you allow yourself to do it? If it were proper, then Jewish law itself would have permitted it. If Jewish law does not permit it, then apparently it is forbidden. The answer is no, because Jewish law was written for the ordinary situations that stood before the sages who wrote the law. Lot’s daughters were in a pathological situation that no person had ever been in and apparently will not be in, or at least it does not seem so. At least that is certainly how they understood it. A situation in which two daughters and a father are the last three people left on earth. No one in Jewish law ever dreamed of such a situation. Fine, no one dreamed of it—so what do we do now? If the Holy One, blessed be He, came and said this is permitted, fine, then I have a halakhic permission. No one dreamed of it, therefore no one wrote it, but in truth Jewish law permits it. But the point is that the Holy One, blessed be He, said nothing to them, and they certainly were not Torah scholars who could know what Jewish law says and does not say, insofar as Jewish law even existed then. Rather, they were supposed to make the judgment of a layman, not a halakhic judgment. You have to understand that in such an extreme and pathological situation, you are actually supposed to violate Jewish law. There is no permission. Jewish law does not permit such a thing; it does not deal with those situations. Nor do you have a halakhic source that will let you rely on it. But you have to understand on your own, even as a layman, that this is what is incumbent upon you to do in that situation. That is what is called a transgression for the sake of Heaven.

I will perhaps give you an example of an implication of this point. Both the Netziv and Rabbi Kook, in a famous responsum—Netziv also in his responsa—say a similar principle. Rabbi Kook studied under the Netziv, so maybe he also took it from him. They say a similar principle, later adopted by many, many halakhic decisors, many later authorities and decisors and others. They argue that a transgression for the sake of Heaven may be done only if you intend it for the sake of Heaven. But if your intention is really to derive pleasure—for example, if Lot’s daughters or Yael really intended the prohibition, they intended to enjoy it—then it would be forbidden for them. Meaning, you may do it only if your intention is for the sake of Heaven. It is somewhat similar to a kind of unintentional-action permission: if your intention is for the sake of Heaven then it is called unintentional and is permitted, although in matters of sexual prohibitions that probably would not work as a permission. But that is their claim.

Now I want you to understand that this statement is complete nonsense in light of what I said earlier. It cannot be said at all. Because what did I say earlier? I said that a transgression for the sake of Heaven means a meta-halakhic judgment arising from the extremity of the consequences, from the radical consequences of this extreme situation in which I find myself. The extinction of humanity, or the defeat of the people of Israel in war if Yael does not kill Sisera, whatever—some very extreme consequences. Therefore what permits this transgression is not because it is not a transgression. It is a transgression. But it is permitted to commit even a serious halakhic transgression if—if the consequences on the other side are extremely severe. That is what is called a transgression for the sake of Heaven.

Now look. Suppose Yael is madly in love with Sisera. She really wants to lie with him because she wants it, not in order to save the people of Israel. But in fact, if she does not do it, the people of Israel will not be saved. According to the Netziv and Rabbi Kook, it would be forbidden for her to do it, because a transgression for the sake of Heaven may be done only if you intend it for the sake of Heaven. Yes? I argue that a transgression for the sake of Heaven means a transgression that leads to a positive outcome, not a transgression done with a positive intention. What permits the transgression is the actual outcome. It has nothing to do with your intention. Your intention cannot turn it from a transgression into a commandment, but I argue that there is no need to turn it into a commandment. It is permitted to do it even though it remains a transgression.

Would it occur to anyone that if Lot’s daughters, say, wanted to lie with their father, fine—then it would be forbidden for them to do it and we would allow humanity to become extinct? After all, the whole permission to do it is because of that consequence, that humanity will disappear. So now because they are not righteous enough and their intention is really to enjoy it, and they want to enjoy those relations—that is how they are made, they enjoy it, that is what they want—so because of that humanity should become extinct? The whole idea of a transgression for the sake of Heaven is exactly the opposite. In a certain sense, people perceive the interpretation of Rabbi Kook and the Netziv as more radical than mine. They want to claim that you can define a certain act as a transgression or as a commandment based on my intention. That is a truly subversive statement. That if I intend it for the sake of Heaven, then Jewish law will not tell me what to do; the main thing is that I intend it for the sake of Heaven. They do not say it explicitly, but that is basically the idea behind what they are saying.

I say: what are you talking about? Jewish law stands fixed. It does not depend on what you want to achieve, what you do not want to achieve, on your intentions. And if something is forbidden, it is forbidden regardless of your intentions—apart from unintentional action, which is a separate topic, but we won’t discuss that here. It is forbidden. What justifies this act is not that it becomes permitted or becomes a commandment. What justifies this act is that one may violate a prohibition in order to prevent disastrous and irreversible consequences. Therefore the only thing that matters in determining whether one should or should not do it is the result. And if the result is that humanity will become extinct, then even if they want to do it for their own pleasure, if they do not do it humanity will in fact become extinct. So they are allowed to do it. That is, I think, a nice implication. It nicely sharpens the meaning of what I am saying here. Because Rabbi Kook and the Netziv seemingly go halfway. They also understand that this is not just an ordinary halakhic override rule, but that there is here some subversive statement that says one may commit a transgression where one intends it for the sake of Heaven. But they go only halfway and, in my eyes, miss the whole point of the discussion. Because the basic claim is that it does not turn into a commandment. It remains a transgression. And what justifies that act of transgression is preventing the consequence. Therefore the only thing that matters here is to examine the expected consequence. It does not matter what I intend or do not intend. That is what matters. That is the meaning of a transgression for the sake of Heaven.