Lesson 17: Vayechi

From the book Mida Tova: Articles on the Principles of Halakhic Thinking by Rabbi Michael Avraham. Translated from Hebrew using gpt-5.4 (reasoning_effort=high, batch API).

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With God’s help

Concepts

• Teleology and deontology in halakha (Jewish law) and ethics.
• Act-based and result-based prohibitions.
• Is intention primary, or is the act primary?
• Intention that changes the character of the act.

Summary

In this essay we examine Joseph’s words to his brothers, who fear his revenge. Embedded in his words is the assumption that criminal intent without a transgressive act does not call for punishment, and perhaps is not even a transgression at all. We discuss the comments of Or HaChayim on the verse, and the disagreements among the commentators on this issue. We present a dispute among the commentators as to whether criminal intent that is actualized in some act is a full-fledged transgression, with only punishment being absent, or whether it is not a transgression at all, but merely an expression of a moral problem. On the face of it, the second view is correct.

We then examine the apparent contradiction between the discussion in Babylonian Talmud, Nazir 23a, which deals with one who intended to eat pork but ended up eating lamb, and the discussion in Babylonian Talmud, Menachot 64a, which deals with one who offers an additional sin offering with the intention of desecrating the Sabbath, but it turns out after the fact that he acted properly. Our conclusion is that only the Nazir discussion is relevant to our subject, because only there do we find a case of intention without a transgressive act. The Menachot discussion, by contrast, addresses a case in which, in addition to intention, there is also a transgressive act. There we discuss a line of reasoning in the spirit of the Chazon Ish: a mitzvah (commandment) act performed with an alien intention, together with a transgression, is not considered a mitzvah act at all; as a rule, it is a transgressive act.

At the end of the essay we discuss the relation between a halakhic transgression and a moral transgression, and show that the criterion for a halakhic transgression is teleological, that is, purpose- or result-dependent, whereas the criterion for a moral transgression is deontological, that is, dependent on the will. We conclude with two brief remarks: first, on the story of David and Bathsheba as an illustration of the distinction between halakha and morality; and second, on Maimonides’ ruling concerning a ger toshav, which appears to contradict our conclusions regarding the deontological character of morality and the teleological character of halakha.

The Principles and Themes Emerging from the Essay

The Relation Between Act and Intention in Halakha

A Look at Deontology and Teleology

Introduction

After Jacob’s death, the brothers are very afraid of Joseph’s revenge. They come to him with a request, as described in Genesis 50:15-21:

When Joseph’s brothers saw that their father had died, they said, “What if Joseph still bears a grudge against us and repays us for all the evil that we did to him?” So they sent word to Joseph, saying, “Your father gave this command before his death: ‘Thus shall you say to Joseph: Please forgive the offense of your brothers and their sin, for they did evil to you.’ And now, please forgive the offense of the servants of the God of your father.” Joseph wept when they spoke to him. His brothers also came, fell before him, and said, “Behold, we are your slaves.” But Joseph said to them, “Do not be afraid. Am I in the place of God? You intended evil against me, but God intended it for good, in order to bring about what has happened this day, to keep many people alive. So now, do not be afraid. I will provide for you and for your children.” And he comforted them and spoke to their hearts.

Joseph comforts them with two different arguments:¹

1. “Am I in the place of God?” At first glance, the claim is that vengeance belongs to the Holy One, blessed be He, and not to flesh and blood. Rashi, however, explains it differently: a human being has no power to take revenge, just as they themselves were unable to carry out their plan against him, since everything depends on the will of God.
2. “You intended evil against me, but God intended it for good.” In the end, a good outcome emerged from your evil deed, so I have no reason to take revenge on you.

These two arguments, of course, contradict one another. The first assumes that there is a justified basis for revenge, but that it is God’s role, not Joseph’s. The second maintains that despite the evil intention, there is no reason for revenge at all, since in the end the outcome was positive. But this kind of argument is familiar, even in legal systems: the first rationale, and alternatively the second.

The second consideration seems highly problematic. Do we judge an act by its results, or by the motives of the one who performed it? Joseph explicitly states that the brothers’ intention was evil, and nevertheless he does not regard the act as blameworthy, because positive results emerged from it.

Rashbam indeed explains that Joseph’s reasoning was that the brothers were under compulsion, since God brought all this about through them in order to save a great people. That explanation also raises difficult questions about the relation between human freedom and the realization of the divine will in the world. But the simpler explanation is the first one: the evaluation of the act is based on its outcome, not on its motives. We may see here an approach of teleological ethics, which examines and judges actions by their purpose and result, as opposed to deontological ethics, which examines actions by the motives and intentions accompanying them.

Two questions arise here:

1. Does the Torah in fact adopt a teleological moral approach?
2. Does halakha relate in this way to halakhic acts, whether commandments or transgressions?

In this week’s essay we will focus on the second question.¹

Two Levels of Discussion

Even within the second question, one can distinguish between two planes of discussion: the nature of halakha itself, that is, the definition of transgressions and commandments; and the treatment of the offender, for example one who transgressed without intent, or a case of criminal intent that was never realized.

The first plane concerns the essence of a halakhic transgression: is its core the result, or the action? For example, in murder, is the primary prohibition the result, namely death, or is the homicidal act itself the problem, with the result merely defining the act as murder? One might even go further and ask whether an action that brings about a result that would have occurred anyway is forbidden at all. For example, the Jerusalem Talmud, Tractate Terumot, discusses a case in which gentiles besiege a Jewish city and demand that one of the inhabitants be handed over, otherwise they will kill everyone. As a matter of halakha, it is ruled that one may not hand over anyone, even if all of them will die. Here, a teleological calculation that evaluates the situation in terms of cost, benefit, and results would clearly tell us to hand over one of them, since in any case all are about to die; if they hand over one person, at least the rest will be saved. If so, it seems that halakha is not teleological in this sense.² But that question does not bear specifically on the distinction between intention and act; rather, it concerns the relation between an action and its result. We dealt with those questions in our essay on the portion of Bereishit, 5767, and elsewhere.

Here we want to address the second issue: the relation between subjective intention and what happens in objective reality, whether that be an action or a result. In every modern legal system, criminal intent is required in order to convict someone as a criminal offender. The same is true in halakha. But we still must ask whether the essence of the transgression is the criminal intent, or whether the act or result is primary, with intention serving only as a condition for conviction, and perhaps merely as a condition for punishment. It seems that Joseph’s statement in the verse cited above addresses precisely this question.

The Comments of Or HaChayim and the Discussion in Nazir

On this verse, Or HaChayim writes as follows:

“You intended… but God intended it for good. This is comparable to one who intended to give his fellow a cup of poison, but instead gave him a cup of wine; he incurs nothing at all. So too, they are exempt and acquitted even by the law of Heaven.”

According to Or HaChayim, Joseph tells his brothers that they are innocent even in the eyes of Heaven, because although they intended evil, if in the end it did not actually occur, then no transgression exists here at all. Many commentators have already challenged him³ from the passage in Babylonian Talmud, Nazir 23a, which states:

The Sages taught: “If her husband annulled them, and the Lord will forgive her” — Scripture is speaking of a woman whose husband annulled her vow and she did not know it, and she requires atonement and forgiveness. And when Rabbi Akiva reached this verse he would weep and say: If one who intended to eat pork but what came to his hand was lamb requires atonement and forgiveness, then one who intended to eat pork and what came to his hand was pork, all the more so. Similarly, you may say: “Though he did not know it, yet he is guilty and shall bear his iniquity.” If one who intended to eat lamb but what came to his hand was pork — for example, a piece that might have been ordinary fat and might have been forbidden fat — regarding him Scripture says, “and shall bear his iniquity,” then one who intended to eat pork and what came to his hand was pork, all the more so.

The baraita presents a case in which a woman made a vow and her husband annulled it, but she did not know this.⁴ Even though she thought the matter was forbidden to her by vow, because she did not know the vow had been annulled, she decided to violate it and eat the forbidden item. In practice, no transgression occurred, because she did not eat anything forbidden to her, but her intention was to transgress. In such a case, says the baraita, she requires forgiveness and atonement. Rabbi Akiva compares this to one who intended to eat pork and ended up eating lamb, which is a similar case: criminal intent without a transgressive act. From here he infers, by an a fortiori argument, the severity of an intention that is actually realized in a transgressive act.

In the next part of the passage, a similar inference is made from the opposite case: a transgressive act without intention, that is, an inadvertent transgression. From this too Rabbi Akiva infers, by an a fortiori argument, the greater severity of an intentional transgression.

At first glance, the picture that emerges is this: an intentional transgression is one that includes criminal intent and a transgressive act. If one of the components is missing, the transgression is not “complete.” When intention is absent, it is an inadvertent transgression. When the act is absent, it is the case of one who intended to eat pork but ended up eating lamb. Halakha obligates the inadvertent transgressor to bring an offering, whereas the one who intended to eat pork but ended up eating lamb is not obligated to bring anything. This would seem to indicate that the act is primary, while intention is only a secondary condition, a more marginal element. Intention in itself has no status as a transgression.

The main novelty of this baraita is that even the case of intending to eat pork but ending up with lamb is not halakhically meaningless. It too requires forgiveness and atonement. The question is what exactly this means. Is there some sort of transgressive act here in some sense, or is there only an intention to rebel against God, which requires repentance, though no transgression exists in the halakhic sense?

Before addressing that question, let us return to Or HaChayim. At first glance, his words are difficult whichever possibility we adopt. Whether there is a real transgression here or not, it is clear that in the eyes of Heaven one is still liable in some sense, since forgiveness and atonement are required. If so, how can Joseph say to his brothers, according to Or HaChayim‘s interpretation, that they committed no transgression at all?

Possible Directions of Explanation

Several possible explanations may be suggested for Or HaChayim‘s view:

1. He may hold that there is indeed no transgressive act here. True, atonement and forgiveness are required from Heaven, but only for the intention, not for an actual transgression. Perhaps this is what Joseph means by saying, “Am I in the place of God?” For in truth, on the heavenly plane, atonement is required. It should be noted, however, that Or HaChayim says they are exempt and acquitted even by heavenly law, which seems to imply that they do not even require forgiveness and atonement. With some strain, one might say that he means only that they are exempt from punishment by Heaven, though some censure still remains.

2. Although Or HaChayim‘s wording evokes the Nazir passage, and that discussion certainly stood before him, he cites a scenario that does not appear there. He does not speak of pork and lamb, nor of annulled vows. His example is one who wanted to give his fellow poison and mistakenly gave him wine. If he had the Nazir passage in mind, it is not clear why he did not cite the examples actually found there. It therefore seems likely that his intention was to say that the case of Joseph’s brothers differs from those two cases, and is specifically like the case of one who intended to give poison but gave wine; and in such a case there is indeed no claim against him even in the eyes of Heaven. Two lines of explanation may be suggested for this distinction:
   – Or Bahir suggests that the Nazir passage concerns one who intended to commit a transgression and did not succeed, as in eating lamb or not actually violating a vow. But here we are dealing with one who wanted to harm his fellow and in the end benefited him, as by giving him wine. In such a case, no atonement is needed at all.⁵

   This explanation seems problematic, however. Why should the fact that some good ultimately emerged erase the fact that he wanted to commit a transgression? His criminal intent still requires forgiveness and atonement, like any criminal intent. At most, he might receive separate reward for the benefit that came to his fellow, and even that is doubtful, since he did not intend it at all.

• Another possibility is that murder is a result-based transgression, not an act-based transgression. Therefore, if the result does not occur, there is no transgression at all. This is unlike the violation of a vow or the prohibition of eating pork, where the act itself has significance even when the transgressive result is not reached. It is reasonable to say something similar regarding all offenses between one person and another.⁶
  3. Another possibility is to explain Or HaChayim in light of the distinction between the term “liability in the eyes of Heaven” and the term “punishment.” Joseph did not tell his brothers that they were not subject to punishments from Heaven; he told them that they were acquitted even by heavenly law. Medieval commentators explain that when a person must discharge an obligation “before Heaven,” this means that he bears a monetary obligation, but an earthly court neither imposes nor enforces it; only Heaven will exact it from him. The claim that a person is not liable to punishment by Heaven is entirely different. If so, Or HaChayim may mean here that the brothers bear no obligation toward their fellow, not even one enforceable only in Heaven. But there is certainly still a claim against them in Heaven for what they did.

It should be noted that according to the first two possibilities in explaining Or HaChayim, he clearly held that the case of intending to eat pork but ending up eating lamb is not a transgression at all. If there were a transgression here, and only punishment were absent, or the transgression merely less severe, then there would be no place for his statement. According to the last explanation, however, that is true only regarding result-based transgressions, not act-based ones. In result-based transgressions, failure of realization nullifies the transgression altogether. In act-based transgressions, the Gemara teaches that forgiveness and atonement are required even for intention without realization.

The Griz: Criminal Intention as a Full Transgression

Maimonides brings this halakha in Laws of Vows 12:18 and writes as follows:

If a woman vowed, and the father or husband annulled it, and she did not know that it had been annulled, and she intentionally violated her vow or oath, she is exempt. Even though she intended what was forbidden, since the permission had already taken effect, she is exempt. About this Scripture says: “And the Lord will forgive her, because her father had restrained her.” Nevertheless, they administer disciplinary lashes to her because she intended to do what was forbidden.

From this, Rabbi Yitzchak Zev Soloveitchik, the Griz, infers in his novellae on Nazir that Maimonides understood the Gemara to mean that this woman committed a full-fledged transgression — both because she receives disciplinary lashes and because Maimonides uses the term “exempt.” In other words, the absence of the forbidden result only exempts her from punishment, and no more. According to this view, intention toward the prohibition is itself the foundation of the transgression, while the realization of the result is required only as a condition for punishment.

This is a revolutionary conception of the very notion of transgression in halakha. According to it, transgressions are demands directed at a person’s intentions, not at his actions. Even the duties of the limbs are really duties of the heart. Realization is required only as a condition for imposing punishment on the intention.

One may, however, ask whether this is an essential condition, meaning that without realization the transgression is less severe, or whether without realization there is simply no proof that the person indeed had criminal intent, and therefore a court cannot punish him. In our cases, namely where one intended to eat pork but ended up eating lamb, it is clear that criminal intent existed, because some act was performed. True, the act that was performed was not itself a forbidden act, but it clearly testifies to the existence of criminal intent. If so, even according to the Griz, criminal intention that is not fully realized in a forbidden result is still a transgression, though a lighter one.

With respect to Or HaChayim, by contrast, we saw that this is not a transgression at all — except perhaps in act-based transgressions, where there may be some transgressive element, though on the plain reading there is no transgression here, only a need for forgiveness and atonement. This is also how most commentators understand the Gemara: in every transgression, without actual realization of the intention in practice, there is no transgressive act.

Two Ways of Understanding the Case of One Who Intended Pork but Got Lamb

We have seen different approaches to the halakhic status of the case of one who intended to eat pork but ended up eating lamb. Is it a lighter transgression, or no transgression at all? But even regarding the essential halakhic classification of such a case, one may discuss two possibilities. To do so, we should first distinguish between two different kinds of intention without transgression:

1. The case of one who intended to eat pork but ended up eating lamb. Here, in practice, some act was done as a result of the criminal intention, but the act is not the one he intended. The intention was realized in some way in the world, though not in the form of an ordinary transgressive act.
2. Pure criminal intention. Someone intends to murder another person but does nothing at all. Here there is only criminal intention, and it is not realized in practice in any form whatsoever. It seems that the Griz did not mean to say that even in this case there is a transgressive act. His claim applies only to the first situation, where the intention is realized in practice, but not as a transgressive act.

If so, there is no doubt that intention alone is not a transgression in any sense whatsoever. One may still ask whether there is room for repentance over such an intention, and presumably there is. Would the Gemara also say that forgiveness and atonement are required for it? That is unclear. The dispute concerns a case in which the intention is realized through some concrete act, but without a transgressive act.

We can now understand that even with respect to the case of one who intended pork but got lamb, two possibilities may be suggested. Is what is missing here only the forbidden result, since no pork was eaten, or is there not even a transgressive act here? It seems likely that the earlier dispute depends on these two possibilities:

1. The Griz understands that a transgressive act occurred here, because the realization of the intention is itself a transgressive act. Yet the forbidden result did not occur. According to him, what is lacking here is not the act but the result, and the discussion is not about the relation between intention and act, but about the relation between act and result.
2. Or HaChayim understands that since in actual fact he did not eat pork at all, no transgressive act occurred. Of course, some act did occur, but a “transgressive act” is not a physical motion; it is an act with halakhic significance. The act here is merely the practical realization of the intention, but not a transgressive act. According to this approach, the sugya is not about the relation between act and result, but about the relation between intention and act.

A Note from the Plain Sense of the Gemara

Truthfully, it is difficult to view the prohibition of eating pork as a result-based prohibition. On its face, it is an act-based prohibition. Therefore, a Gemara that uses this example is probably discussing the relation between intention and action, not between action and result, as Or HaChayim suggests.

Against this background, our earlier observation about Or HaChayim becomes even sharper: he brought an example not found in the Gemara, namely one who intended to give his fellow poison but gave him wine. According to our account, it is very likely that Or HaChayim means that the case of Joseph and his brothers resembles precisely that case, and not the cases cited in the Gemara; and therefore here they are entirely exempt. The reason is that in result-based commandments and prohibitions, intention has no significance, and only the result matters. The entire discussion in Nazir concerns only act-based commandments and prohibitions, such as eating pork.⁷

The Substantive Discussion

The Gemara in Nazir compares two situations: an inadvertent transgression, that is, an act without intention; and the case of one who intended pork but got lamb, that is, intention without a transgressive act. The Gemara seems to treat the two as having equal halakhic status.⁸ But as we noted above, from a halakhic standpoint this does not seem right: an inadvertent transgressor brings an offering, whereas one who intended pork but got lamb does not. At first glance, the inadvertent transgression seems more severe.

But on the substantive level, things look very difficult. From the standpoint of the result, the inadvertent transgression is certainly more severe, since the forbidden result actually occurred, which is not the case with one who intended pork but got lamb. But in terms of the gravity of the wrongdoing and the offender’s own wickedness, it would seem to be exactly the opposite: the latter case is much more severe, because the person intended to commit the prohibition. At first glance he appears to be a full-fledged evildoer, just like an intentional transgressor, except that he failed against his will. Heaven caused his plot not to succeed. Why should the fact that he was inept make his transgression less severe? More difficult still: why should such a transgression be considered lighter than an inadvertent transgression, when the inadvertent transgressor never intended the prohibition at all?

It is hard to avoid the conclusion that the wickedness of the one who intended pork but got lamb is indeed greater. But apparently the severity of the transgression is not determined by the degree of criminality involved in it. The picture that emerges here suggests that the result determines the severity of the transgression. That is to say, this is a teleological conception rather than a deontological one.

From this also follows a different theory of punishment. The severity of the punishment does not necessarily reflect the degree of criminality involved in the transgressive act, but rather the severity of the result. Therefore, no punishment is imposed on one who intended pork but got lamb, even though the criminality involved is the same as in a fully intentional transgression. Punishment is a matter of atonement and repair of the result in the world, and not necessarily a response to the offender’s wickedness, unlike theories of punishment that emphasize deterrence and the like.⁹ True, in the case of an inadvertent transgression there is a result in the world, and only intention is lacking. If punishment had only the dimension of atonement and repair, we should punish the offender even for an inadvertent transgression. It follows that some measure of guilt is also required, without which the duty of repair cannot be imposed on him. Guilt is not the purpose of punishment, but it is a condition for imposing it on the offender. If he is not guilty, then the duty of repair does not rest on him. Therefore, in the case of an inadvertent transgression, halakha imposes on him the obligation to bring an offering, though not in every case.

The Discussion in Menachot 64a

We find another discussion dealing with a similar case, in Babylonian Talmud, Menachot 64a:

Ravina said to Rav Ashi: If the first animal was found to be internally emaciated, what is the law? Do we follow his intention, since the man intended a prohibited act, or do we follow his deed?

The discussion concerns someone who slaughtered two animals for a sin offering, and his intention was transgressive, since he had already fulfilled his obligation with the first one, and it is forbidden to slaughter another. In the end, however, the first animal was found to be internally emaciated, and in such a case it is permitted, and even necessary, to slaughter another one, because of the principle, “Offer it, please, to your governor.” The Gemara explains the two sides of the doubt: do we go after his negative intention, or after his positive deed? At first glance, this seems identical to the case of one who intended pork but got lamb. Immediately afterward, the Gemara brings a dispute between Rabbah and Rava in a similar case:

He said to him: Is this not the very dispute between Rabbah and Rava? For it was stated: If one heard that a child had fallen into the sea, and he spread a net to catch fish and caught fish, he is liable. If he spread it to catch fish and caught fish and a child, Rava says he is liable, and Rabbah says he is exempt. Rabbah exempts only there, because once he heard about the child, we say that his mind was also on the child; but if he had not heard, not so. Some say that he said to him: This is the dispute between Rabbah and Rava. For it was stated: If one did not hear that a child had fallen into the sea, and he spread a net to catch fish and caught fish, he is liable. If he spread it to catch fish and caught a child and fish, Rabbah says exempt and Rava says liable. Rabbah says exempt — follow the act; Rava says liable — follow the intention.

Rabbah and Rava dispute a case in which someone cast a net on the Sabbath in order to fish, which is the Torah prohibition of trapping, and it turned out that he also brought up a child and thereby saved him from drowning. In other words, after the fact it became clear that the act was a mitzvah. Here too, there is an act that is a mitzvah, but an intention that is transgressive.

The Gemara presents two versions of the explanation of the dispute and its connection to the case of the internally emaciated animal:

According to the first version, Rabbah exempts in that case only because the person had heard that a child had fallen in, and therefore presumably intended the child as well. From this it follows that in the case of one who intended pork but got lamb, both Rabbah and Rava would find him liable, because there he certainly was not thinking that it was lamb. According to the second version, there is no dependence on his having heard the report, and the dispute turns on whether we follow his act or his intention, exactly as in the case where the first animal turned out to be internally emaciated.

If so, according to the first version both Rabbah and Rava hold him fully liable by Torah law on the basis of intention alone.¹⁰ According to the second version, Rabbah exempts and Rava obligates. As a matter of practical halakha, Maimonides rules in Laws of Shabbat 2:16 that he is exempt, and the same is true of Raavad, who appears to have had an inverse text in the sugya with respect to Rabbah and Rava.

The Distinction Between the Menachot Discussion and the Nazir Discussion

At first glance, the very issue of the status of criminal intention without a transgressive act would seem to be the subject of dispute between the amoraim in Menachot, while practical halakha follows Nazir. Yet it is striking that the discussion in Menachot never cites the case of one who intended pork but got lamb, nor the mishnah in Nazir. This is especially notable given that Nazir deals with tannaitic opinions. It therefore seems that the Gemara does not see a connection between the sugyot, and that ruling like Rabbah is not a decision reached on the basis of Nazir; rather, it is entirely independent of Nazir. What, then, is the distinction between the sugyot?¹¹

The difficulty becomes sharper in light of what we said above regarding Or HaChayim: in result-based transgressions, bare intention counts for nothing. Here the transgression is between man and God, desecration of the Sabbath, but it is clearly a result-based transgression: the question is whether anything was trapped or not. If so, unlike eating pork or violating a vow, there would seem to be no room at all here for a debate about liability. And yet specifically here some opinions appear to impose actual liability for a Torah transgression.

The necessary distinction is that in the Menachot case he brought up fish in his net together with the child, meaning that there was a transgressive act. True, together with the fish a child was also brought up, and had this been done intentionally it would have been a justified act, even a mitzvah. But when it is done with transgressive intention and only incidentally yields a positive result, the act is still considered a transgressive act. Indeed, the Gemara’s wording is precise, for it takes care to emphasize that both a child and fish came up, and it does not frame the dispute as a case where only a child came up. This implies that if only a child came up, all would agree that he is exempt.

One may formulate this in the language used by the Chazon Ish in several contexts:¹³ if the intention is to bring up a child and fish come up as well, then this is not an act of trapping at all, but an act of rescue to which trapping was merely incidental. Here there is positive intention and no transgressive act. But if the intention is to bring up fish, and a child happens also to come up, then this is an act of trapping with positive consequences. Here there are both criminal intention and a transgressive act.

It should be noted, however, that at the beginning of the Menachot discussion they deal with the case where the first animal was found to be internally emaciated, and there it is clear that no transgressive act occurred, because when the first animal is inferior they tell him to offer a second one. If so, how can this be compared to the dispute of Rabbah and Rava? Moreover, according to the first version, even Rabbah, who exempts in the case of the child, would obligate in the case of the emaciated animal, although that seems to be the lighter case, since no transgressive act is present.

It is true that one who exempts in the case of the child, and as we saw that is the practical halakha, will certainly exempt also in the case of the emaciated animal by an a fortiori argument, because in the latter there is no transgressive act. Therefore there is at least one side for making the law of the emaciated animal depend on the law of trapping fish and a child.

Now, Kli Chemdah wrote in explanation that even in the case where the first animal is found to be internally emaciated, there is still a transgressive act, because after all he did fulfill his obligation even with the inferior first animal, and therefore the slaughter of the second is superfluous and would seemingly involve the prohibition of taking life on the Sabbath. It is only because of the duty of enhancement, “Offer it, please, to your governor,” that he is permitted, and indeed commanded, to offer another one. But this permission is a case of suspension, not of something permitted outright. That is, there remains a prohibition of desecrating the Sabbath, but it is suspended in the face of the duty to offer the sacrifice in the best manner. In such a case, there is an act of prohibition, except that it is set aside by the mitzvah. But when there is criminal intention rather than mitzvah-intention, then the prohibited act is still considered a prohibited act, similar to the reasoning of the Chazon Ish mentioned above. In other words, when he did not intend to offer the second animal for the sake of a mitzvah, the permission to set aside Sabbath desecration lapses. By contrast, in the case where one thought he was eating pork but in fact ate lamb, in the end he did no transgressive act at all, for he simply ate lamb. Therefore, in that case there is not even a possible basis for obligating him. For this reason, the Gemara in Menachot does not connect its discussion to that case at all.¹²

In sum, the Menachot discussion does not deal with intention without an act. In both cases mentioned there, there is criminal intention together with an act that can be interpreted as a transgressive act. The dispute there is whether criminal intention can turn a permitted act into a transgressive act. This issue is related to the question of unintended action, where we discuss a transgressive act done with or without intention. Here, it is an unintended mitzvah accompanied by a transgression.¹³ In Nazir, by contrast, the discussion concerns cases in which there is no forbidden act at all, only criminal intention. In such a case, it is clear that there is no actual liability; at most, forgiveness and atonement are required.

Broadening the Discussion: Morality and Law

The conclusion from everything we have said so far is that halakhic wrongdoing is determined by the act. If a transgressive act was done, then a transgression occurred. If criminal intention accompanies it, it is an intentional transgression. If such intention does not accompany it, it is an inadvertent transgression, which still constitutes a transgressive act and therefore also requires an offering in certain cases.

What about bare criminal intention? If there is no act that realizes it, it counts for nothing, apart from a certain moral disgrace, of course. But if it is realized in an act that is not itself a transgression, such as eating lamb, the Griz indeed claims that this already constitutes a transgression, and that the requirement of a transgressive act exists only for the sake of punishment. Or HaChayim, however, appears to hold the opposite, and so too does the plain sense of the Nazir passage. The same follows from the plain sense of Menachot, which saw fit to frame the dispute between Rava and Rabbah specifically in a case where he brought up fish and a child, and not in a case where he brought up only a child, where there would be only criminal intention and no transgressive act, and where the Gemara evidently takes for granted that there is no place to hold him liable.

This state of affairs is also familiar from modern civil legal systems. An attempted murder that fails is not treated as an offense of the same degree as a successful murder. One should note that in both cases the murderer performs the same actions and acts out of the same intentions, except that in the case of attempted murder he has bad luck and fails. Why should that be a reason to mitigate his punishment? Why is there a need for a separate legal provision prohibiting and punishing attempted murder, rather than charging him under the law of murder itself? After all, he performed an act of murder; it simply failed. Is that a reason not to punish him?

Apparently there is here a conception that places the act at the center of the criminal offense. Criminal intention is required in order to punish someone, but the foundation of the offense is the act. If no legally relevant act occurs — and here the point is not merely a behavior that expresses the offense, such as eating the lamb or firing the gun, but the prohibited result — there is no basis for punishment. For this reason, to punish a person for attempted murder, the law must define a separate offense that imposes a sanction even on attempt, beyond the completed act.

In the moral realm, the situation is the opposite. Morally speaking, the disgrace of attempted murder is very similar to that of murder itself. Since Kant, it has been commonly accepted that moral judgment evaluates the person, not the results of his actions. A person is judged by what he does and by what depends on him, and therefore the failure of his criminal attempt has no moral significance. There are, of course, pragmatist approaches that make morality depend on results, that is, teleological approaches, rather than on intentions, that is, deontological approaches. According to such views, the character traits of the person have no significance except as instruments for maintaining social order. Under these approaches, demands concerning behavior, intentions, and moral character are merely instruments for achieving a better reality. In the conventional Torah view, the situation is different: refined character traits have value in themselves, not merely instrumental value for improving reality.

If so, on the moral plane the Torah may see matters in a “Kantian” way, but halakha, like other legal systems, sees them differently: there the act is the focus of the transgression, and intention is required only as a condition for punishment.

Back to Joseph

We must now return to our point of departure. We saw that Joseph tells his brothers not to fear his revenge, because although they intended to do him evil, in the end good results emerged from it. Does that really offer them comfort? Does the fact that good results emerged cover over the transgression they committed?

In light of what we have said here, it seems that on the moral plane this is of no significance. The brothers sinned morally, and the reversal of the results neither adds nor subtracts anything on that plane. On the halakhic plane, however, the brothers did not commit a transgressive act, because their act resembles the case of one who intended pork but got lamb, and that is not a transgressive act.

Therefore they do require forgiveness and atonement in the moral sense, but this is not a full transgression.¹⁴ Or HaChayim claims that they are not even liable by heavenly law, but it is hard to believe that he meant to say that their deeds were entirely clean from the moral point of view. The phrase “exempt and acquitted even by heavenly law” need not mean that the act contains no moral disgrace, for that would run entirely contrary to the plain sense of the verses. His point is that there is not the slightest trace of legal liability here, not even in the eyes of Heaven.

It should be noted that several medieval authorities do in fact distinguish between being “liable in the eyes of Heaven” and acting “beyond the letter of the law,” or fulfilling the requirement to “do what is right and good.”¹⁵ They see even liability in the eyes of Heaven as a kind of halakhic obligation. The moral judgment that God renders on each of us is not what the Sages call “liable in the eyes of Heaven”; they use different terminology for that.

A Note on the Story of David and Bathsheba: A Moral but Not a Halakhic Transgression

A similar example of our claim here may be seen in the story of David and Bathsheba. We may see this through the discussion in Babylonian Talmud, Shabbat 56a:

Rabbi Shmuel bar Nachmani said in the name of Rabbi Yonatan: Anyone who says that David sinned is nothing but mistaken, as it is stated: “And David prospered in all his ways, and the Lord was with him.” Is it possible that sin came to his hand and the Divine Presence was with him? Rather, how do I interpret the verse, “Why have you despised the word of the Lord, to do evil”? It means that he sought to do, but did not do. Rav said: Rabbi, who descends from David, turns the verse and expounds it in David’s favor. “Why have you despised the word of the Lord, to do evil” — Rabbi says: This evil is different from all other evils in the Torah, for with all the other evils in the Torah it is written, “and he did,” whereas here it is written, “to do” — meaning that he sought to do, but did not do. “You struck Uriah the Hittite with the sword” — you should have judged him before the Sanhedrin, but you did not. “And his wife you took to be your wife” — you do have valid marriage with her. For Rabbi Shmuel bar Nachmani said in the name of Rabbi Yonatan: Everyone who goes to war in the house of David writes a bill of divorce to his wife, as it is stated: “And these ten cheeses you shall bring to the captain of the thousand, and you shall inquire after your brothers’ welfare, and take their pledge.” What is meant by “their pledge”? Rav Yosef taught: matters shared between him and her. “And him you killed with the sword of the Ammonites” — just as you are not punished for the sword of the Ammonites, so too you are not punished for Uriah the Hittite. What is the reason? He was a rebel against the kingdom, as he said to him: “And my lord Joab and the servants of my lord are encamped in the open field.”

The Sages say that David did not sin. On the other hand, the prophet Nathan cries out against him through the parable of the poor man’s ewe lamb. How can the Sages ignore explicit verses? Moreover, how do they interpret the act itself, where David takes a married woman and uses his authority as king to send her husband to die in battle?

The sugya explains that the killing of Uriah was justified because he was a rebel against the kingdom, since he mentioned Joab before David. Taking his wife was also not an act of adultery, because everyone who went to war in the house of David gave his wife a conditional bill of divorce, so that if he died in battle she would not require levirate marriage; and Uriah did in fact die in battle. If so, his wife was permitted to others.

All these are formal halakhic explanations. David did not transgress the prohibition of adultery, nor that of murder. But morally, without any doubt, David sinned, and for this Nathan rebukes him. If so, when the Sages say that David did not sin, they mean that he did not commit an actual halakhic transgression. But a terrible moral stain certainly remains in what he did. One should note that Nathan rebukes him through the parable of the poor man’s ewe lamb, whose core is theft, and perhaps not even outright theft but only the oppression of the poor; otherwise, why should it matter that the lamb belonged to a poor man rather than to a wealthy person? In other words, Nathan too does not see here adultery or murder. What he sees is oppression and an abuse of power in order to obtain something, in a way that is formally justified but morally corrupt.

We must now analyze David’s act within the conceptual framework presented in this essay. At first glance, this might seem to be a case of criminal intention without a transgression. But in fact that is not so. There is no criminal transgression here, because David did not intend to commit a halakhic transgression, neither adultery nor murder. What we have here is immoral intention and an immoral act. Thus this case is not similar to the case of one who intended pork but got lamb, because in David’s case not only is there no halakhic transgressive act, there is not even an intention to commit a halakhic transgression. On the other hand, the moral disgrace is certainly present, and in that sense David’s case does resemble the other case somewhat. Nevertheless, the Sages say of him: “Anyone who says David sinned is nothing but mistaken.” That is a sweeping expression, but its entire force lies on the halakhic plane, not on the moral plane. It seems that Or HaChayim intended the same form of expression regarding Joseph’s brothers, as we explained above.

A Note on Maimonides’ Ruling Concerning a Ger Toshav (Resident Alien)¹⁶

Maimonides writes at the end of chapter 8 of Laws of Kings as follows:

Anyone who accepts the seven commandments and is careful to observe them is one of the pious among the nations of the world and has a share in the world to come — provided that he accepts and performs them because the Holy One, blessed be He, commanded them in the Torah, and informed us through Moses our teacher that the descendants of Noah had previously been commanded regarding them. But if he performs them because reason so dictates, he is not a ger toshav and is not one of the pious among the nations of the world, but only — and some have the reading: not even — one of their sages.

Maimonides rules that performing commandments not from acceptance of the yoke of the Torah given at Sinai, but because reason so dictates, has no religious significance as service of God, but at most moral significance. At first glance, such conduct satisfies a teleological test, for the act was done, but not a deontological one, because it was not done with the right intention. If so, in light of everything we have argued thus far, we would have expected exactly the opposite ruling: with respect to morality, this should not help, since moral evaluation is determined by intention, while with respect to halakha it should suffice, since in the end the act was done.

But that is a mistake. The intention that is lacking here is lacking only in the halakhic sense, for there is fully present moral intention. Therefore, from the standpoint of moral evaluation, this is certainly a complete act, and thus Maimonides regards him as one of the pious among the nations of the world. The deficiency in intention is religious, and therefore from the halakhic point of view intention is lacking. But as we have seen until now, from the halakhic point of view the act, not the intention, is primary. We are therefore forced to conclude that an act not done out of mitzvah-motivation is not considered a mitzvah act at all, somewhat along the lines of the Chazon Ish‘s reasoning above.

This issue requires more detailed discussion concerning the relation between positive and negative commandments, as well as the relation between this halakha and the rule that commandments require intention,¹⁷ but that is beyond our scope here.

Footnotes