Lesson 20: Bo

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.
• Framing the sides in a conflict of values.
• “Heaven” as a legal fiction within the halakhic (Jewish-legal) world.
• The nullification of commandments in the case of a dead Jew.

Summary

In this week’s article we discuss the Ritva’s comments about a beit din (rabbinical court) that was coerced into not sanctifying the month. The Ritva’s remarks contain several fascinating innovations, and we examine a number of them in four independent chapters. First, we discuss the status of an extended month as sanctified by Heaven: is there really a session of the heavenly court that sanctifies the month, or not? Surprisingly, this question has legal implications, even today and for us—for example, regarding whether one repeats the special Rosh Chodesh insertion in the evening prayer on the eve of Rosh Chodesh (the New Moon day, the first of the month).

Later we will see that, at least according to some medieval authorities, the authority of the sages in fixing the calendar is absolute. That is, months of unlimited length are theoretically possible, depending on the decision of the court. In this context we present medieval views that distinguish between positive commandments and prohibitions with respect to martyrdom in times of persecution, as well as views that reject that distinction, and we connect the issue to the dispute between teleological and deontological conceptions.

After that, we turn to complex conflicts of value, in which two possible courses of action each stand opposite the value that overrides it. The question that arises is: which of the two values is considered to stand opposite the “defending” value, and which is only a secondary value? Problems of this type arise in relation to desecrating the Sabbath in order to save a Jew who is about to surrender his life rather than worship idols; in the medieval dilemma whether, for a patient on the Sabbath, one should permit slaughter or instead feed him carrion; and even in understanding the nature of the miracle of Hanukkah.

The Rules and Principles That Emerge from the Article

Regarding Coercion in Sanctifying the Month

A Look at Several Halakhic Angles and Contexts

Introduction

In this week’s article we will discuss several issues that arise out of the Ritva’s analysis of a situation in which coercion leads to the nullification of the commandment to sanctify the month. His comments raise several difficulties, each of which opens the door to a fascinating discussion in its own right. We will briefly try to identify the different aspects of the discussion, and we will devote a chapter to each of them.

A. Introduction

The Commandment to Sanctify the Month

Our weekly Torah portion deals with the commandment to sanctify the month. This is the first commandment given to the people of Israel as a people, and therefore Rashi, at the beginning of his commentary on the Torah, asks why the Torah did not open with this point.

Thus Maimonides writes in Sefer Ha-Mitzvot, positive commandment 153:

Positive commandment 153 is that the Blessed One commanded us to sanctify months and to calculate months and years. This is the commandment of sanctifying the month, as it says, “This month shall be for you the beginning of months” (Exodus 12:2). The interpretation given in Babylonian Talmud, Rosh Hashanah 22a, is: “This testimony is entrusted to you.” That is, this commandment is not entrusted to each and every individual, as is the weekly Sabbath, where each person counts six days and rests on the seventh. It is not that when the moon becomes visible to each person he determines that day to be Rosh Chodesh, or counts according to a scriptural reckoning and fixes the new month, or examines the lateness of the spring and other relevant factors and adds a month. Rather, this commandment may never be performed except by the Great Court alone, and only in the Land of Israel.

The commandment of sanctifying the month and intercalating the year is imposed upon the court, not upon every individual in Israel. Moreover, this commandment is imposed only upon the Great Court in the Land of Israel, as Maimonides continues there. It is a unique commandment in several respects, and here we will open primarily with one of them: beyond the obligation to sanctify months, the sages of Israel possess the right and the absolute authority to determine the festivals of the year. Everything depends on them.

The Authority and Role of the Sages in Fixing the Months

In tractate Rosh Hashanah there is a sugya dealing with the authority of the court to determine the festivals and sanctify the months. Within that discussion a case is brought in which Rabban Gamliel prevented the sanctification of the month in light of a tradition he possessed. Rabbi Yehoshua was distressed by this, and then Rabbi Akiva reminded him of something that he himself had taught him (Babylonian Talmud, Rosh Hashanah 25a):

He said to him: My teacher, allow me to say before you one thing that you yourself taught me. He said to him: Speak. He said to him: Scripture says, “which you shall proclaim” (Leviticus 23), and the word “you” appears three times: “you” — even if you act inadvertently; “you” — even if you act intentionally; “you” — even if you are misled. He replied in these very words: Akiva, you have comforted me; you have comforted me.

So the matter goes so far that the Torah grants the sages authority to determine the festivals arbitrarily—even if they erred, whether through coercion, mistake, or even intentionally. The festivals are determined solely by their decision. Maimonides rules this explicitly in Mishneh Torah, Laws of Sanctification of the New Moon, at the end of chapter 2:

If a court sanctified the month, whether inadvertently, in error, or under coercion, it is sanctified. Everyone is obligated to set the festivals according to the day on which they sanctified it, even if someone knows that they erred; he is bound to rely on them, for the matter is entrusted only to them. And He who commanded us to observe the festivals also commanded us to rely on them, as it says, “which you shall proclaim,” and so forth.

However, the Mishnah, one page earlier in tractate Rosh Hashanah, qualifies the authority of the sages regarding sanctifying the month, and says as follows (Rosh Hashanah 24a):

The head of the court says, “Sanctified,” and all the people answer after him, “Sanctified, sanctified.” Whether it was seen at its proper time or whether it was not seen at its proper time, they sanctify it. Rabbi Elazar son of Rabbi Tzadok says: If it was not seen at its proper time, they do not sanctify it, for Heaven has already sanctified it.

At first glance, according to Rabbi Elazar son of Rabbi Tzadok, the date of Rosh Chodesh is not completely entrusted to the sages, for if they did not sanctify it at its proper time, Heaven sanctifies it automatically. The sages operate within a framework that leaves them only a very narrow range of freedom. Later in the Gemara a three-way tannaitic dispute is cited, and the law is decided in accordance with Rabbi Elazar son of Rabbi Tzadok:

Rabbi Elazar son of Rabbi Tzadok says: If it was not seen at its proper time, they do not sanctify it. It was taught: Palyimo says: At its proper time they do not sanctify it; not at its proper time they do sanctify it. Rabbi Elazar son of Rabbi Shimon says: In either case they do not sanctify it, as it says, “And you shall hallow the fiftieth year” (Leviticus 25). Years you sanctify, but you do not sanctify months. Rabbi Yehudah said in the name of Shmuel: The law follows Rabbi Elazar son of Rabbi Tzadok.

And so too Maimonides rules in Laws of Sanctification of the New Moon 2:8.¹

The Gemara there seeks the source for the first tanna, who holds that sanctification by the court is always required, and one of the sources brought there is a homiletic reading of that same verse, in the same direction:

From where do we know this? Rav Pappa said: Scripture says, “which you shall proclaim them”; read it as “you.”

If the law follows Rabbi Elazar son of Rabbi Tzadok, then the notion of “you” is significantly qualified here.

One could, however, understand that this discussion concerns only whether the court must say the word “Sanctified,” and not necessarily its authority to determine the date itself. Consider: if, according to the sages, the court in fact did not say “Sanctified” on a Rosh Chodesh that was not at its proper time, would that day really not be Rosh Chodesh? Then when would it occur? Could a month last forty or fifty days because the court did not sanctify it? Below we shall see that such a long month is indeed possible, and in fact the medieval authorities already disagree whether the issue here is a ceremonial sanctification or an actual legal determination of the date of Rosh Chodesh.

In the opinion of Rabbi Elazar son of Rabbi Tzadok, more than that seems to be involved. The reason he gives for his position—that when sanctification is not at its proper time one need not say “Sanctified”—is substantial: Heaven has already sanctified it. That is, Heaven has already sanctified the month. Still, one could attribute this only to the ceremonial declaration and say that the date itself depends on the court’s determination, but the sanctification of the day—its transformation into a special day, though not its dating—is what is done by the court; and when it is not at its proper time, the day need not be sanctified. Yet from the continuation of the Gemara (“Abaye said: We too have learned this…”), and from the parallel sugya in Sanhedrin 10b, it also seems that the issue is the fundamental one—when the month is fixed—and not merely the ceremonial question of who sanctifies that day. But, as noted, the medieval authorities disagree on this point.

In any event, from this sugya it would seem that with respect to sanctifying the month, as distinct from intercalating the year, the sages’ authority is marginal, since the range of possibilities is apparently extremely narrow: one may move a day this way or that, but the court cannot determine the date however it sees fit. Yet from the Ritva’s comments on the sugya in Hullin 101b—and from other medieval authorities, as we shall see—it emerges that this picture is not precise. It seems that even regarding the date on which Rosh Chodesh occurs there can be a significant degree of freedom dependent on the court. In this week’s article we will discuss several fascinating aspects that arise from these remarks of the Ritva.

The Hullin Passage and the Ritva’s Comments

Babylonian Talmud, Hullin 101b, deals with the principle that one prohibition does not take effect where another prohibition already applies, and within that discussion it considers the case of someone who performed labor on Yom Kippur that fell on the Sabbath:

Rav Yitzhak bar Yaakov bar Giyorei sent in the name of Rabbi Yohanan: According to Rabbi Yosei HaGelili, as I have reversed the cases, if one was inadvertent with regard to the Sabbath and deliberate with regard to Yom Kippur, he is liable; if he was deliberate with regard to the Sabbath and inadvertent with regard to Yom Kippur, he is exempt. What is the reason? Abaye said: The Sabbath is fixed and established, but Yom Kippur is fixed by the court. Rava said to him: In the end, both come together! Rather, Rava said: It was a time of persecution, and they sent from there that the Day of Atonement of that year was on the Sabbath. And so too, when Ravin and all the others who came down arrived, they said in accordance with Rava.

The Gemara says that in such a case he is liable only for the prohibition of labor on the Sabbath, not for labor on Yom Kippur. The Gemara asks: why is he not liable for Yom Kippur too? After all, both prohibitions arrive simultaneously, so both should take effect. It answers that this was a time of persecution, and they fixed Yom Kippur to fall on the Sabbath. Rashi explains that they did this so that it would not be evident that work was not being done because of Yom Kippur, since the enemies would attribute it to the Sabbath; therefore Rabbi Yosei HaGelili exempted him with respect to Yom Kippur.

The Ritva, in his novellae there, cites Rashi’s explanation, and immediately afterward he cites Tosafot’s question:

Tosafot asked: How could it be possible that they nullified Yom Kippur in a time of decrees? In a time of decrees one must be killed rather than transgress even over a shoelace, as stated in Babylonian Talmud, Sanhedrin 74b; and even not in a time of decrees, in public one must be killed rather than transgress. And this was in public, for what is a public setting? Ten persons.

Tosafot found it difficult to understand how Yom Kippur could be nullified because of the decree, since in a time of persecution one must be killed rather than transgress even over a mere custom, and certainly over so grave a prohibition as Yom Kippur. The Ritva answers:

In my opinion this is no difficulty, for the sanctification of months by the court is a positive commandment, and for a positive commandment one transgresses rather than being killed, as I have explained in several places—unless this is merely a matter of piety, like that found in the Talmudic sugya in Shabbat 49a; see there in Nahmanides. And it is possible that this is what the gentiles decreed against the court, that it should not sanctify it, and then there is no Day of Atonement here. Examine this carefully.

He explains that performing labor and eating on Yom Kippur are indeed grave prohibitions, and in a time of persecution one would have had to die rather than transgress. But here the court simply did not establish Yom Kippur, and therefore it was a weekday. In practice, one who performed labor on that day, or ate, transgressed no prohibition at all. The only prohibition transgressed here was the neglect of the positive commandment—cited above from Maimonides in Sefer Ha-Mitzvot, positive commandment 153—to sanctify the months, for the court did not sanctify the month. But this is not the violation of a prohibition; it is merely the neglect of a positive commandment. The Ritva’s innovation is that for a positive commandment one need not die and may transgress in order to save oneself, even in a time of persecution.² He then adds that perhaps the gentiles decreed specifically against the court that it must not sanctify Yom Kippur, and then there simply is no Yom Kippur here.

Difficulties in the Ritva’s Comments

The Ritva’s remarks raise several significant difficulties:

1. Is neglecting a positive commandment really less severe than changing a shoelace from black to white? In a time of persecution, one must be killed rather than transgress over a characteristic form of dress—the color of one’s shoelaces—so why is there no such obligation with respect to neglecting a positive commandment?
2. In Kli Hemda, on the portion Bo, sec. 1, it is asked why the Ritva had to add that the gentiles decreed against the court not to sanctify the months. The plain sense of the Gemara would seem to be that they decreed only against all Israel not to observe Yom Kippur, and the court found a legal solution in order to prevent the entire the public from having to surrender their lives for Yom Kippur’s prohibitions: they simply did not sanctify the month, and thereby Yom Kippur disappeared.
3. Another difficulty, brought in Kli Hemda, is: what was gained by the court’s not sanctifying the month of Tishrei? At most, that can only postpone Rosh Chodesh by one day, but on the second day the month is automatically sanctified anyway—“for Heaven has already sanctified it,” according to Rabbi Elazar son of Rabbi Tzadok. If so, Yom Kippur was only postponed by one day, not nullified. How, then, could it turn out that there was no Yom Kippur that year and that it fell on the Sabbath?
4. It is also unclear why, for performing labor on that Yom Kippur which fell on the Sabbath, one would not also be liable on account of Yom Kippur. Even if the court sanctified the month differently, the month is ultimately sanctified, and Yom Kippur will occur wherever it falls according to the court’s determination. So why does the Gemara say that one is not liable for labor on that Yom Kippur, but only for the Sabbath and not for Yom Kippur?

As noted, each of these difficulties opens up a different angle, though there are also connections between the angles. In the following chapters we will address these difficulties in greater detail.³

B. Difficulties 3 and 4

Introduction

The difficulty that relates most directly to our topic—sanctifying the month—is the third difficulty. From the Ritva’s words it seems that if the court does not sanctify the month of Tishrei, then there simply is no such month, and the Elul of the previous year continues without limit until the court decides to sanctify Tishrei. But as we have seen, the law was decided in accordance with Rabbi Elazar son of Rabbi Tzadok, and so Heaven has already sanctified it on day 31, and Yom Kippur will therefore occur in any case.⁴

A Change in the Understanding of Sanctification by the Heavenly Court

This question assumes that Heaven’s sanctification is automatic and does not depend on the earthly court. But Tosafot, in Sanhedrin 10b, under the words “for Heaven has already sanctified it,” explain Rabbi Elazar son of Rabbi Tzadok differently:

“For Heaven has already sanctified it” — some explain that the heavenly court always sanctifies it at the moment of the lunar conjunction. But that does not seem correct, for if so, then when it is at its proper time too Heaven has already sanctified it. Rather, as the standard commentary explains in chapter 2 of Rosh Hashanah, on day 30 the heavenly court waits for the earthly court, perhaps they will make the month full. But on day 31, since it is impossible that they will not sanctify it that day, Heaven sanctifies it from dawn. As for what the Jerusalem Talmud says—Rabba bar Zevada in the name of Rav: the reason of Rabbi Elazar son of Rabbi Tzadok is that when the heavenly court sees that they are not sanctifying it, they sanctify it—this too can be explained in accordance with the standard commentary: when the heavenly court sees that they are not sanctifying it below on day 30, they sanctify it from the morning of day 31, for there is no longer any doubt, and that day will certainly be fixed.

From Tosafot it appears that the sanctification of the heavenly court is not automatic. The heavenly court decides that if the earthly court did not sanctify on day 30, then it is clear that it is about to sanctify on day 31, and so it sanctifies that day at its very beginning. What would happen if the earthly court decided not to sanctify on day 31 either? It may be that, according to Tosafot, this is impossible, for the entire freedom of the court is only to choose between day 30 and day 31. And in fact Rabbi Yonah writes explicitly in his commentary to the sugya in Sanhedrin:

If it was not seen at its proper time, they do not sanctify it, for Heaven has already sanctified it. That is, since it was not at its proper time, it does not depend on the will of the court and does not require sanctification, because it is sanctified on its own. “Heaven’s sanctification” means only that the month can no longer be shortened. But if it was seen on day 30, they may sanctify it, because the matter depends on their discretion: if they sanctify it, it is sanctified, and if not, it is not sanctified. As is said in the chapter “If They Do Not Recognize”: “which you shall proclaim at their appointed times” — even if inadvertent, even if coerced, and even if mistaken.

From Rabbi Yonah’s wording it appears that the heavenly court does not sanctify the month at all. Rabbi Elazar son of Rabbi Tzadok’s expression, “for Heaven has already sanctified it,” is merely a figurative way of saying that there is no point in the earthly court sanctifying the month on day 31, since it is sanctified by itself. He apparently is unwilling to distinguish between fixing the day as Rosh Chodesh and sanctifying it. When the Gemara speaks of sanctifying the month, it means fixing its timing. And when the timing is known, the month is already “sanctified” on its own, so no further sanctification is required.

But with respect to the Ritva, one might perhaps explain that he understands it differently: all authority over sanctifying the month belongs to the earthly court, except that when there was no sanctification on day 30, the heavenly court already knows that the earthly court will sanctify on day 31, and so it sanctifies it itself. But if the earthly court decides, in a given situation, not to sanctify even on day 31, then the sanctification of the heavenly court has no significance, and indeed the month does not begin at all. This is why the Ritva wrote that because the earthly court decided not to sanctify the month of Tishrei, it did not begin at all. In that case there was no heavenly sanctification either.⁵

We should add that the Ritva apparently disagrees with Rabbi Yonah on the second point as well. In his view, the heavenly court actually does sanctify the month, and this is not merely a figurative description meaning that no sanctification is needed. For if the heavenly court did not sanctify at all and the month simply took effect automatically, then in a time of persecution the month would still have been sanctified. Only if we say that the heavenly court too must sanctify can we say, as the Ritva does, that if the earthly court decides not to sanctify for various reasons, the month will not be sanctified because the heavenly court will not sanctify it either.

Summary of the Sides of the Dispute, and an Additional Practical Consequence: Can an Error in Sanctifying the Month Be Reversed?

So these medieval authorities disagree on two questions:

1. How extensive is the court’s authority in sanctifying the month? According to Rabbi Yonah, that authority is very limited, as we wrote above. But according to the Ritva, the authority is absolute, and they can do with the calendar as they please. This is also the plain meaning of the Gemara’s exposition in Rosh Hashanah 25a: “even intentionally.”
2. According to Rabbi Elazar son of Rabbi Tzadok, does the heavenly court sanctify the month when it was not sanctified at its proper time, or does it become sanctified automatically? According to Rabbi Yonah, the heavenly court does not sanctify it at all; it happens automatically. According to the Ritva, the heavenly court does sanctify it—unless the earthly court has decided otherwise.

We can now see that Tosafot in Sanhedrin, cited above, seem to hold that the heavenly court really does sanctify the month when it was not sanctified at its proper time, like the Ritva. It therefore seems that they also agree with him that it is possible not to sanctify it at all if the earthly court decides so. Earlier we raised that as a doubt in explaining Tosafot’s view. This may also help us understand why Tosafot wrote there that the heavenly court sanctifies the month on the morning of day 31. The reason seems to be that sanctifying the month does not take place at night, because a court does not judge at night. That is, in their view there is here an actual act of sanctification. According to Rabbi Yonah there is no reason to say that this “sanctification” takes place in the morning, for in his view it is not performed at all; rather, it takes effect by itself, and presumably already from the evening of day 31.⁶

The author of Kli Hemda cites another legal consequence of this dispute and connects it to a different dispute among medieval authorities.

Maimonides writes in Mishneh Torah, Laws of Sanctification of the New Moon 3:15–16:

If the court sat through the entire thirtieth day and witnesses did not come, and then arose at dawn and declared the month full, as we explained in this chapter, and after four or five days distant witnesses came and testified that they had seen the moon at its proper time, namely on the night of the thirtieth day—even if they came at the end of the month—the court threatens them severely, confuses them with questions, burdens them with examinations, scrutinizes their testimony, and strives not to sanctify this month, since it has already acquired the reputation of being full.

But if the witnesses stand by their testimony and it is found accurate, and the witnesses are known and intelligent men, and the testimony was properly investigated, then they sanctify it, and they begin counting that month again from day 30, since the moon was seen that night.

Maimonides rules that there is a situation in which the court declared the month extended, and then it becomes clear that the conjunction had already occurred on day 30, in which case they go back and count as though the month had been ordinary and not extended. But if the heavenly court had already sanctified it, then it would be impossible to go back and count from day 30, for day 31 would already be fixed. Thus Maimonides understands the matter like Rabbi Yonah, that the heavenly court does not sanctify the month. By contrast, Minhat Hinukh, in the commandment of sanctifying the month, commandment 4, explains that Rashi and Tosafot disagree with Maimonides, because in their view the heavenly court has already sanctified the month on day 31, and therefore it is impossible to go back and count from day 30. That is, they follow the Ritva and the Tosafot cited above, that the heavenly court sanctifies the extended month.

Conclusion: The Court Has Absolute Authority Even with Respect to Sanctifying the Month

The conclusion is that, at least according to some medieval authorities, even with respect to sanctifying the month, absolute authority lies in the hands of the court, and by its decision the month can continue without limit, for as long as it directs.

We should note that we see here expressions that introduce metaphysical dimensions into halakhic considerations being interpreted by some medieval authorities in a metaphorical way. Heaven has no part in the legal act, for “it is not in heaven.” It is possible that this is because precisely in the sugya of sanctifying the month the earthly court has absolute authority, but examples from other contexts could also be brought, and this is not the place.

Difficulty 4

We still need to clarify difficulty 4, which is an internal technical difficulty. If at that time the court did sanctify Tishrei, and fixed Yom Kippur so that it fell on the Sabbath, then they did not nullify the commandment of sanctifying the month at all. One might perhaps explain that the commandment is to sanctify it at the proper time, and that they failed to do. They sanctified the month on a different date, unlawfully. Such a sanctification does take effect—“you,” even intentionally—but there is still a neglect of a positive commandment.

But that explanation too is impossible. If they really did sanctify the month, then why did someone who performed labor that day not also transgress the prohibition of labor on Yom Kippur? This would be a real and legally valid Yom Kippur.

We are therefore forced to conclude that they truly did not sanctify the month. But if so, another question arises: what does it mean that they instructed the people to observe Yom Kippur on the Sabbath so that it would not be forgotten? It seems that they did this only as a memorial to Yom Kippur, but it was not a real Yom Kippur. Therefore one who performed labor on it was not liable on account of Yom Kippur, but at most on account of labor on the Sabbath.

C. Difficulty 1: The Difference Between Omission and Commission with Respect to Martyrdom

An Explanation of the Ritva’s View

Within his discussion, Kli Hemda offers an interesting explanation of the Ritva’s view. According to him, when Jews are coerced to refrain from performing a commandment—that is, they are required to remain passive—there is no point in surrendering one’s life, because the commandment will not be performed in any case. The omission will exist regardless. A dead Jew does not perform commandments. By contrast, if they coerce him to commit a transgression, then he must surrender his life, because a dead Jew also does not commit transgressions.⁷

This can also explain the distinction from the case of the shoelace. There the demand is for an active deed, not for passivity. If the Jew dies, there will be no Jew walking around with a white shoelace, and therefore he must surrender his life. So the distinction does not concern the gravity of the matter, for clearly neglecting a positive commandment is more serious than changing the color of one’s shoelaces. In the laws of martyrdom the issue is not one of severity, since one must surrender one’s life even over the color of one’s shoelaces. The distinction is based on whether we are dealing with an active transgression or with passivity.

The Ran’s View in the Sugya of Elisha, the Man of Wings

Kli Hemda himself points to the Ran’s comments on the incident of Elisha, the Man of Wings, in Babylonian Talmud, Shabbat 49a:

Why do they call him “the Man of Wings”? Once the wicked Roman government decreed against Israel that whoever wears tefillin (phylacteries) would have his brain pierced. Elisha nevertheless wore them and went out into the marketplace. A certain officer saw him. He ran from him, and the officer ran after him. When the officer caught up with him, Elisha removed them from his head and held them in his hand. The officer said to him: What is that in your hand? He said to him: Dove’s wings. He opened his hand, and they were found to be dove’s wings. Therefore they called him Elisha, the Man of Wings.

The Ran, in his novellae there, asks:

But if so, how did he do this? Do we not rule in chapter “The Verdict Was Rendered” (Babylonian Talmud, Sanhedrin 74b) that in a time of persecution even over a shoelace one must be killed rather than transgress? The answer is that this applies to violating prohibitions. But if they decreed the nullification of a positive commandment, since he does not transgress actively, and since they can nullify it against his will anyway by putting him in prison so that it lapses on its own, therefore he lets it lapse rather than being killed.

At first glance the Ran’s words conflict with Kli Hemda’s suggestion, since he bases the distinction on passive omission versus active commission, though this distinction is indeed difficult, because clearly neglecting a positive commandment is more serious than shoelace color. Yet the Ran’s second explanation does seem similar to Kli Hemda’s proposal, since in the case of a positive commandment—where the demand is for passivity—the gentiles can nullify the commandment in any case.⁸ Perhaps this is exactly what he means, and the two reasons join to form one overall explanation: precisely because this involves only passivity, the gentiles can achieve it themselves, even without the Jew’s surrender.⁹

Teleology and Deontology

It seems that here too we encounter the question whether Jewish law has a teleological or a deontological character. The consideration raised by Kli Hemda is an outcome test: will the sacrifice succeed in achieving its purpose or not? That is a distinctly teleological consideration. But one might have viewed the matter on the deontological plane, meaning that the question of self-sacrifice is not judged by the likelihood of achieving the goal, but is a duty that stands on its own. A person should sacrifice himself even for the neglect of a positive commandment, even though the commandment will not be fulfilled even if he sacrifices himself.

And indeed there are medieval authorities—and this also seems to be the implication of the plain language of most medieval authorities and decisors—who do not distinguish between a positive commandment and a prohibition. In their view, in a time of persecution every Jew must sacrifice himself even for the neglect of a positive commandment. Kli Hemda himself cites this from Nahmanides on the Torah, on the portion Yitro, Exodus 20:6.¹⁰ This is a distinctly deontological approach, for it does not take the outcome test into account.

Many reasons may be offered for this, but here our aim is only to point to this context of the discussion.

D. Difficulty 2: Defining and Framing the Sides in Complex Conflicts of Value

Introduction

The author of Kli Hemda actually begins with the second difficulty: why did the Ritva see fit to add that the coercion was directed at the court not to sanctify the month? This is especially difficult because that explanation runs against the plain meaning of the Gemara. The plain sense seems to be that the gentiles coerced Israel not to observe Yom Kippur, and the non-sanctification of the month was a solution found by the court to lighten the burden and prevent the prohibition, or to prevent mass martyrdom. Kli Hemda adds that the matter is even more difficult in light of the Ribash and Hagahot Asheri at the beginning of Ketubot, who write that when the decree is directed at the court itself, they are obligated to surrender their lives; it is precisely when the decree is not directed at the court but at the public that the court may alter matters, because then there is no duty of martyrdom.¹¹

Kli Hemda’s Explanation

Kli Hemda proposes the following explanation. In order for the court not to sanctify the month, an appropriate reason and justification are required. True, every act of the court in the matter of sanctifying the month is legally effective, but still, to sanctify incorrectly, intentionally, and without justification is forbidden. If the situation had been that no decree was directed against the court at all, and only against the whole of Israel, not to observe Yom Kippur, then that would not have been a sufficient reason to neglect the positive commandment of sanctifying the month. The court would have had to sanctify the month, even at the price of all Israel having to surrender their lives for the sanctification of God’s name.

But these words are highly puzzling. The court can consider various factors with respect to the calendar, so why are the lives of all Israel not a sufficient consideration not to sanctify the month? True, this was said mainly with respect to intercalating the year—there one intercalates for all sorts of reasons; see Maimonides, Laws of Sanctification of the New Moon 4:5–6—but with respect to sanctifying the month the matter is not so simple, and there are views according to which everything depends on the reality, namely on when the conjunction occurred, and the sages may not sanctify contrary to the conjunction; see Maimonides 3:17–18.¹²

A Similar Reasoning in Several Later Authorities

A similar idea appears in Kli Hemda on the portion Vayeshev, sec. 1. There he cites the Levush, who wrote that unlike Purim, Hanukkah does not have a law of feast and rejoicing because there was no rescue of lives there. The Taz objected: is not causing someone to sin worse than killing him?¹³ But in truth the difficulty is far stronger: why was there no rescue of lives? Israel was in danger because they would not obey the Greek decrees, and the Holy One saved them from that danger. How can one say there was no rescue of lives?

We should note that this is difficult even for the Taz, since he too did not challenge the Levush with this question, but only with the point that causing someone to sin is worse than killing him. It seems that he too agrees that there was no rescue of lives there. And indeed Kli Hemda there cites, in the name of the Rebbe of Gur, a resolution of the Taz’s difficulty: on Hanukkah the coercion was directed toward religious apostasy, on pain of death. But if all Israel had been killed for the sanctification of God’s name, they would thereby have performed a great and exalted commandment, namely to surrender their lives for the sanctification of God’s name. Therefore it is not considered a miracle that their bodies were saved. By contrast, on Purim the decree was directed at their lives and not at religious apostasy, and therefore there the salvation was bodily rescue. This also answers our question. In any event, this reasoning is exactly the same as Kli Hemda’s approach here.

A Dispute Concerning the Framing of Similar Conflicts

In this context it is worthwhile to cite the Rema’s ruling in Shulhan Arukh, Orah Hayyim 328:10:

If they wish to force someone to commit a grave transgression, one does not desecrate the Sabbath on his behalf in order to save him.

On this the author of Mishnah Berurah, there no. 31—following Magen Avraham, though much could be debated here—writes that the reason is that “we do not tell a person: sin, so that your fellow may benefit.” He then adds:

One does not desecrate the Sabbath, etc. — because we do not say to a person: sin so that your fellow may benefit. But if the coercion concerns one of the three cardinal sins—idolatry, forbidden sexual relations, or bloodshed—and he estimates that the coerced person will surrender himself to death for this, then it is possible that one must desecrate the Sabbath so that he not come to that.

Mishnah Berurah writes that although one does not desecrate the Sabbath to save a Jew from a grave transgression, in a case where there is concern that the person will surrender his life—for one of the three cardinal sins, and perhaps also in a time of persecution even over a shoelace—it is possible that one should desecrate the Sabbath.

This ruling seems to flatly contradict Kli Hemda’s reading of the Ritva. According to Kli Hemda, there is no justification here for neglecting the positive commandment of sanctifying the month, whereas Mishnah Berurah writes that this is a justification even for violating the grave prohibition—and also the neglect of a positive commandment—of desecrating the Sabbath.

In truth one may ask why Mishnah Berurah writes this only as a possibility. Surely it is obvious that one desecrates the Sabbath in order to save life. But apparently the matter was not so simple for him, because in the final analysis the desecration of the Sabbath here is not in order to save life but in order to prevent the transgression. The life could have been saved if that Jew had simply committed the transgression. True, he is obligated to surrender his life rather than transgress, but this other Jew is not commanded to desecrate the Sabbath in order to save him from transgression—that would be a full prohibition, as the Rema wrote here—but only to save the other’s life, and here, in essence, this is not saving life.

This side of the matter specifically seems suited to Kli Hemda’s position, for the basis of the doubt is that in such a situation desecrating the Sabbath is not considered an act done to save life, but rather one done to prevent transgression. Perhaps fundamentally Kli Hemda is saying something similar: perhaps the meaning of his words is that, in his view, if the court neglects the positive commandment of sanctifying the month, that is not in order to save Israel’s lives but in order to preserve Yom Kippur, and that is not a sufficient reason—for “we do not tell a person: sin, so that your fellow may benefit,” as the Rema says.

But of course all this is only the side on which one might hesitate. In practice, Mishnah Berurah rules that one should desecrate the Sabbath even in such a case, and that this counts as desecrating the Sabbath to save life, not merely to prevent transgression. So there is a clear contradiction here to Kli Hemda’s view. Still, it may be that there really is a dispute here, and that according to Kli Hemda—as well as the Rebbe of Gur, whom we cited in the previous note, and perhaps also the Levush and the Taz—there is indeed no permission to desecrate the Sabbath in order to save a person from transgression, even if he is going to surrender his life for it.

Expansion in Light of the Logical Aspect of the Dispute: The Laws of the Pursuer

The disputes we have seen here do not concern how to decide some conflict of values, but rather what the sides of the conflict are. Is the desecration of the Sabbath done in order to save life or in order to save a Jew from transgression? Is the failure to sanctify the month done in order to save life or in order to save from transgression?

A similar case appears in Babylonian Talmud, Sanhedrin 82a, where the Gemara rules that if Zimri had killed Pinhas, he would not have been liable to death, because from his perspective Pinhas is a “pursuer.” Several later authorities ask, as cited for example in Kli Hemda at the end of the portion Balak, why he would have been permitted to kill him, since he could simply have stopped sinning, and thereby neutralized the reason for the pursuit. Stopping the sin would have been a way of saving the pursuing Pinhas by other means, and whenever the pursuer can be stopped in another way there is no permission to kill him.

Kli Hemda explains there that Zimri was indeed obligated to stop what he was doing, because it was a sin, but that obligation was not toward Pinhas; it was toward the Holy One. Pinhas cannot demand that Zimri stop sinning merely in order to save Pinhas’s life. Zimri does not owe him that. Therefore Zimri was permitted to kill Pinhas under the ordinary law of a pursuer. The decisors expand this further and rule that when Reuven threatens Shimon that he will kill him unless Shimon gives him one shekel, Shimon has no obligation to give him the shekel, and Shimon may kill Reuven. At first glance this permission seems to contradict the value judgment that human life is more important than money. How can one be permitted to kill a person in order to save a single shekel? Moreover, in the case of Zimri, how can it be “permitted” to kill a person in order to realize the “right” to go on sinning?

The answer to both questions lies in how one frames the sides of the conflict. This is not a conflict between the value of the pursuer’s life and the value of money, or the value of the “right” to sin. Rather, it is a threat to life from which one can escape if one gives money or stops sinning. But when faced with a threat to life, one may kill. What stands opposite the prohibition of killing is not the money or the right to sin, but the life of the one being threatened. That is why he may kill his pursuer.

A similar situation can also be seen in the law of the burglar who tunnels into a house. There too the Gemara, in Sanhedrin 72a, explains that the permission to kill him is because if the homeowner resists, the burglar may kill him, and therefore the burglar has the status of a pursuer. At first glance this looks like killing in order to save money, but the Gemara sees it as killing in order to save life. The framing of the sides of the conflict in a different way determines the normative ruling.

This can be generalized even further, to every situation of a pursuer. As we saw in the article on the portion Shemot, 5767, the difference between the law of a pursuer and the prohibition against saving oneself at the cost of another’s life—where one must be killed rather than transgress the prohibition of murder—as well as the parallel difference in monetary law, also depends on the framing of the sides of the conflict. There is a difference between a case in which Reuven threatens to kill me and I can save myself by harming my fellow, and a case in which the fellow himself, or his property, threatens me. In the second case, what stands against the value of my life is the value of my fellow’s life, since he is the one threatening me, and therefore I may harm him. But in the first case, what stands against the value of my life is Reuven’s life, and therefore I may not harm a third party.

Once the problem has been identified as a logical one concerning the framing of the sides in a conflict of values—deciding what stands opposite what—we can compare these disputes to another dispute among medieval authorities, which likewise revolves around a similar question, as we shall now see.

Criteria for Choosing Between Prohibitions for the Sake of a Sick Person

As is well known, saving life overrides all the Torah’s prohibitions. If a person is ill, one may transgress all prohibitions, except for the three cardinal sins, in order to save him. Now let us think about a sick person who needs to eat meat on the Sabbath, and no kosher meat is available. Two options stand before us: either slaughter a kosher animal for him, or feed him non-kosher meat from an animal that died without ritual slaughter.

The medieval authorities disagree on this question. Some of them, and even more of the later authorities, link the question to the debate whether the Sabbath is entirely permitted in the face of danger to life or whether it is only overridden by such danger. Usually this connection is the focus of the later authorities’ analysis of this legal dispute. As we shall see, the dispute concerns both the decision itself—what is preferable—and the reasons—why option A or option B is preferable.¹⁴ Here we are interested specifically in the second aspect of the dispute, which, as we shall see, concerns the framing of the sides in this conflict. We should apologize in advance, because the dispute is highly fundamental and branches in many directions, but for lack of space we will deal only with what touches the question of how to set the sides against one another in a conflict of values.

The Rosh, in chapter 8 of Yoma, no. 14, presents the question as follows:

They asked the Ra’avad, of blessed memory, regarding a dangerously ill patient who must eat meat. If carrion is available before him and there is no slaughtered meat unless one slaughters on the Sabbath—for there are those who say it is better that he violate the prohibition of carrion than that others violate a prohibition punishable by stoning on the Sabbath.

The first view alluded to here appears explicitly in the Tashbetz. According to that view, it is preferable to feed him carrion and not to slaughter, because the prohibition of carrion is lighter. Slaughter is a labor prohibited on the Sabbath—taking life—for which one is liable to stoning if deliberate and to a sin-offering if inadvertent, whereas carrion is only a prohibition. Moreover, in that case the prohibition is committed by the patient himself, and we are not forcing someone else to commit a prohibition for him.¹⁵

We should note that most medieval authorities disagree with the Tashbetz, each for his own reason, and this is also the law as ruled in Shulhan Arukh (Orah Hayyim 328:14).¹⁶ Here, however, our concern is mainly with the Ra’avad’s own position. The Rosh there cites the Ra’avad’s answer to the question posed to him:

He answered: The words of those who say this are well directed. But one may say that the prohibition of the Sabbath has already been given over to be overridden through kindling, cooking, and heating water for him. Or again, it is impossible that there is not at least one minor somewhere at the edge of the world. But if the patient needs food immediately and the carrion is ready for him at once, whereas the slaughtered meat will be delayed, then certainly we feed him the carrion and do not wait for slaughter, skinning, and cooking.

The Ra’avad says that the prohibition of the Sabbath is in any case overridden for the sake of the patient’s life, since one cannot avoid cooking for him and performing other such acts. Therefore it is preferable to violate that prohibition rather than the prohibition of carrion. This is a very puzzling position, for what do the other Sabbath violations that must be committed have to do with the question whether one should also commit the further Sabbath violation of slaughter? Why should the fact that we must commit other prohibited labors on the Sabbath lead us to prefer slaughter rather than carrion, even though slaughter is a more serious prohibition?

After this, the Rosh brings the answer of Maharam of Rothenburg:

Our teacher Meir answered this in a responsum, and brought an analogy from food preparation on a Festival: we slaughter on a Festival, although there is both a positive commandment and a prohibition regarding labor on a Festival, whereas eating carrion involves only a prohibition. Or one could tell a gentile to kill birds by stabbing, where there is only a rabbinic prohibition, for bird-slaughter is not required by Torah law. But since the Torah permitted food preparation on a Festival, for us all food preparation on a Festival is like weekday labor. So too here: since the Torah permitted saving life, any labor done on the Sabbath for a dangerously ill person is as though done on a weekday. And where there are two prohibitions, we feed him the lighter one. In the case of slaughtered meat, the food itself is permitted, but with carrion the food itself is forbidden, and a lion crouches upon it.

This answer too is not entirely clear. Maharam says that slaughter on the Sabbath for a sick person is like slaughter on a Festival for a healthy person: a fully permitted act—that is, the Sabbath is entirely permitted in the face of danger to life. By contrast, carrion remains forbidden even when a sick person eats it; it is merely pushed aside because of danger to life. Therefore it is preferable to slaughter rather than to feed him carrion.

He compares this to the permission to slaughter on a Festival for anyone, even though the prohibition of labor on a Festival includes both a positive and a negative commandment, whereas the alternative of carrion is only a negative commandment. This comparison is also problematic, because with respect to slaughter on a Festival the act is permitted ab initio, not because of a conflict of values. Carrion, by contrast, should be permitted only by virtue of such a conflict.

Maharam’s words are based on the idea that specifically Sabbath prohibitions are entirely permitted in the face of danger to life, unlike other prohibitions.¹⁷ But the Ra’avad apparently does not accept this. He brings secondary proofs that in this case it is specifically Sabbath prohibitions that should be overridden, and it is not clear why these proofs are relevant. Why not choose the lighter prohibition? We should emphasize: even if the Sabbath is entirely permitted, and not merely overridden, before danger to life, we still need an explanation of why one should prefer slaughter specifically. The consideration that other Sabbath prohibitions will be violated in any case does not, at first glance, seem relevant to this decision.

It is quite clear that the Ra’avad has the following consideration in mind. When there are two options for violating a prohibition in order to save the patient, the situation involves two questions:

1. How should the conflict itself be decided?
2. How should the different sides of the conflict be framed?

In other words: what stands here against the patient’s life—the Sabbath or the prohibition of carrion? As stated, our concern here is only the second question, so let us spell it out a bit more.

Two different possibilities stand before us:

• Possibility 2a: One can say that what stands in conflict with saving the patient is the prohibition of carrion. If so, then slaughter is not being done in order to save the patient but in order to avoid feeding carrion, for the patient could also be saved by eating carrion. But there is no permission to violate one prohibition in order to avoid another, certainly not when the prohibition thereby avoided is the lighter one. The only permission is to transgress in order to save life, not in order to avoid a prohibition.
• Possibility 2b: But one can just as well say the opposite: that what stands against saving the patient is the Sabbath prohibition. If so, then feeding carrion is not being done in order to save the patient but in order to avoid desecrating the Sabbath. And even though desecrating the Sabbath is the more serious prohibition, there is still no permission to violate a lighter prohibition in order to avoid being forced into a more serious one.

We can now also understand the Ra’avad’s answer and its reasoning. In his view, it is specifically the Sabbath that stands against saving the patient’s life, because in any case it will “interfere” with our attempt to save him. Even if we choose to feed him carrion, we will still have to cook and heat things for him. By contrast, the prohibition of carrion, in some situations—if we decide to slaughter—will not stand in our way at all. The essential clash, then, is with the Sabbath, not with carrion, and therefore it is specifically the Sabbath prohibition that should be set aside before saving the patient’s life, not the prohibition of carrion.

It is now clear that if we decide to feed him carrion, this will not be in order to save his life but in order to avoid desecrating the Sabbath, and that is forbidden. In other words, the Ra’avad’s consideration is intended to decide in favor of possibility 2b and to reject 2a. We can now see that the answer to question 1—how the conflict is to be resolved—is a straightforward consequence of the answer to question 2—how the conflict is to be framed.

We thus see that the problem here is very similar to those we encountered above. Here too the main question is which prohibition stands opposite the value we are trying to save, and consequently the second prohibition is no longer for saving the value but for avoiding the first prohibition. This is exactly like Mishnah Berurah’s consideration above, and like Kli Hemda’s understanding of the Ritva, and like the Rebbe of Gur’s explanation of the Levush’s view.

Matzah from the New Crop

One final example of the same problem appears in a case we discussed in our article on the portion Vayetze, 5767. There we saw a three-sided paradox that arises when a person has the option of buying matzah made from the new crop at a reasonable price, while he also has the option of buying unquestionably permitted matzah, but that would cost him half his wealth. The legal premises are these: a person is not required to spend more than one fifth of his money on a positive commandment, but in order not to violate a prohibition he must spend all his money. In addition, as is well known, a positive commandment overrides a prohibition.

We can now see that, at first glance, there is no way to decide the problem before us. On the one hand, he is not obligated to buy regular permitted matzah, because its price exceeds one fifth, and there is no obligation to spend half one’s wealth on a positive commandment. But on the other hand, he does have the possibility of buying matzah from the new crop, for the positive commandment of eating matzah overrides the prohibition of the new crop, and that is available at a reasonable price. Yet he can also buy regular permitted matzah, admittedly at a high price, and thereby avoid the prohibition of the new crop. And in order to avoid a prohibition, a person must spend all his money. So why should we permit him to violate the prohibition of the new crop?

If we look carefully, we will see that here too the question is how to frame the sides of the conflict of values against one another. When the person buys expensive matzah, the question is whether the money is being paid in order to fulfill the positive commandment or in order to avoid the prohibition of the new crop. Alternatively, when he buys matzah from the new crop at a reasonable price, the question is whether he is violating the prohibition of the new crop in order to fulfill a positive commandment, or in order to avoid spending too much money. So here too the root of the question lies in deciding which of the three sides stands opposite which, since in this case too the conflict of values is mediated by an intermediate value: the money stands opposite the prohibition through the mediation of the positive commandment, and the prohibition stands opposite the positive commandment through the mediation of the money. This is exactly like the case of Mishnah Berurah, where a person desecrates the Sabbath to save another person’s life through the mediation of preventing a transgression. One can therefore also say that the desecration of the Sabbath stands opposite the transgression and not opposite the life—that is, it is done in order to save him from transgression, through the mediation of life, and not in order to save his life.

Footnotes

Or Sameach, on Laws of Prayer 10, explains this law in light of the Tosafot from Sanhedrin cited above, that the heavenly court sanctifies the extended month on the morning of day 31, because there is no sanctification at night. By contrast, the Meiri and the Ran in the sugya in Berakhot wrote that the heavenly court does not sanctify, like Rabbi Yonah, and therefore on the second night one does repeat the insertion. We thus have a practical legal implication in our own day from this metaphysical dispute. One must still consider, however, why reciting the Rosh Chodesh insertion depends on sanctification by the court, when in reality it is already clear that it is Rosh Chodesh from the evening. This returns us to the question whether the sugya concerns sanctifying the day or fixing its date. See Maimonides, Laws of Sanctification of the New Moon 1:5: “that the court sanctify it and fix it.” This is not the place to elaborate.

Perhaps his intention is that when the threat is only against Israel, there is no obstacle to sanctifying the month at its proper time, and therefore if they failed to do so for an unjustified reason, the failure does not take legal effect. But if there is a direct threat against the judges not to sanctify the month, then their act is legally effective because it was itself done under coercion. It is still not justified, and perhaps they should have died—were it not for the Ritva’s innovation that one need not die for a positive commandment—but in that way the non-sanctification itself is valid.