Lesson 43: Pinchas

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

• Decisive lottery and clarifying lottery.
• Providential randomness and natural randomness.

Abstract

In this week’s essay we discuss the lot and its meanings. The lot appears in the Torah in two contexts: the division of the Land, and the two goats of Yom Kippur. In rabbinic literature there are additional contexts in which lots are cast.

We propose distinguishing between two kinds of lottery, although some later authorities, apparently including the authors of Havot Ya’ir and Yabia Omer, do not accept this distinction:
1. A decisive lottery—whose purpose is to reach a fair division or a reasonable decision where no other means of decision is available. This is what happens with the goats of Yom Kippur, at least according to some views, and in the division of partnerships and inheritances.
2. A clarifying lottery—whose purpose is to clarify the divine will. This is what happens in the division of the Land, and also in the case of the lot cast by the sailors in the Book of Jonah.

A mistaken lottery can serve as a practical difference between these two types. In a clarifying lottery, if it was conducted in error, one can argue that the hand of God did not determine the matter, and therefore the result should not be accepted. In a decisive lottery, by contrast, everything depends on whether the chance of winning was fair.

We point out that a clarifying lottery may involve the prohibition of “You shall be wholehearted with the Lord your God,” and therefore such a lottery is forbidden in ordinary circumstances. Later authorities accordingly restrict the possibility of using it in circumstances unlike those described in the Torah. We also note that the application of both kinds of lottery may run into the problem of asmakhta—that is, a legal commitment based on an uncertain future contingency and therefore lacking full binding force. Some later authorities infer from Sefer Hasidim that it is forbidden to cast lots concerning human lives, but we suggest that the prohibition is not specifically about lives; rather, it concerns the prohibition of a clarifying lottery as such. A decisive lottery contains no prohibition at all, apart perhaps from asmakhta in certain circumstances.

In light of this, we propose an explanation for the contradiction that emerges between two different passages in Sefer Hasidim, based on the assumption that conducting a clarifying lottery requires some divine indication that the lottery is indeed valid. A decisive lottery requires no such indication. We suggest that tradition, too, can function as permission to conduct a lot, as though we possess an indication of its validity. This explains when a clarifying lottery is permitted: either when there is an explicit command to conduct it, as in the division of the Land; or when there is a divine indication of the lot’s validity, as in the case of Jonah the prophet; or perhaps also when there is a tradition guiding the procedure, as in the Vilna Gaon’s lot.

Along the way we also briefly discuss the question of providence in the world—how far each event is under divine supervision—and we describe the lot cast by Rabbi Aryeh Levin to identify the fallen members of the Convoy of Thirty-Five after the War of Independence.

On Lotteries

A Look at Randomness and Providence

Introduction

In our Torah portion we are commanded concerning the distribution of inheritances in the Land of Israel. In that context, an important device used in the process is mentioned: the lot. In this week’s essay we will discuss this device, its function, the range of contexts in which it is relevant, and also its spiritual and theological meaning. We should note that we have already touched on the matter of lotteries in connection with choosing between two pursuers in a situation of mutual pursuit, as in the case of separating Siamese twins, in our essay on Parashat Shemot, 5767; see especially footnotes 5 and 14 there.¹

A. Lottery in the Division of the Land and in General

Introduction

The lot is mentioned in the Bible itself in only two contexts: the two goats on Yom Kippur, and the division of the Land. In our Torah portion, the Torah commands us regarding the division of the Land and the use of a lot for that division. The lot is mentioned in connection with the division of the Land in four passages, all in the Book of Numbers:

1. Numbers 26:55-56:

Nevertheless, the land shall be divided by lot; they shall inherit according to the names of their ancestral tribes. By the decision of the lot their inheritance shall be divided between the many and the few.

2. Numbers 33:54:

You shall apportion the land by lot among your families; to the larger group you shall increase its inheritance, and to the smaller group you shall decrease its inheritance. Wherever the lot falls for anyone, that shall be his; you shall inherit according to your ancestral tribes.

3. Numbers 34:13:

Moses commanded the children of Israel, saying: This is the land that you shall inherit by lot, which the Lord commanded to give to the nine tribes and the half-tribe.

4. Numbers 36:2:

They said: The Lord commanded my master to give the land as an inheritance by lot to the children of Israel, and my master was commanded by the Lord to give the inheritance of our brother Zelophehad to his daughters.

The basic division by lot was the allocation of portions of the Land to the tribes. There was also a division within each tribe among the various families, and according to most opinions that too was conducted by lot, as may be inferred from the second source cited above: “among your families.”²

Rashi, on Numbers 26:54, following the Sages, describes the process of the tribal lottery as follows:³

“To the more numerous you shall give a larger inheritance”—to the tribe whose population was larger they gave a larger portion. And although the portions were not equal, for the portions were divided according to the size of each tribe, they nevertheless did so only by lot. And the lot was conducted through divine inspiration, as explained in Babylonian Talmud, Bava Batra 122a: Eleazar the priest was clothed with the Urim and Thummim, and he would say by divine inspiration, “If such-and-such tribe comes up, such-and-such territory comes up with it.” The tribes were written on twelve slips, and the twelve boundaries on twelve slips. They mixed them in a container, and the tribal prince put his hand into it and drew two slips. In his hand came up a slip with the name of his tribe and a slip with the territory assigned to it. And the lot itself would cry out and say, “I, the lot, have come up for such-and-such territory, for such-and-such tribe,” as it says: “By the decision of the lot.” And the land was not divided merely by measurement, because one territory is better than another, but by appraisal: a larger tract of poor land against a smaller tract of good land, all according to value.

The goal was to match a portion of the Land to each tribe, when the division of the Land into twelve portions had already been determined in advance. Naturally, one would expect there to be twelve slips with the territorial portions, and each tribal prince would draw one slip that would determine which portion his tribe would receive. Yet it turns out that they used a double—and seemingly problematic—system: twelve slips with territorial portions and twelve slips with the names of the tribes. Each prince approached the container and drew two slips: on one was written the name of his tribe, and on the other the territorial portion. This is puzzling, for one would think that when a prince drew a slip, there was no reason it should specifically bear the name of his own tribe—especially since the whole procedure could have been arranged in a clearer and more secure way.

The Role of Randomness

Why was it done this way? Apparently the reason is that Moses wanted to show that these portions did not emerge from the container randomly, but that there was a portion designated from above for each tribe. Therefore a miracle was needed: each tribal prince would randomly draw a slip containing the name of his own tribe. The coincidence that each prince drew the slip of his own tribe was what proved that the results of the lot had been determined from above.

But if the game is rigged, why use a lot at all? Why should the Torah not simply determine for each tribe which portion it would receive, without any lottery? We usually understand a fair lottery as something based on complete randomness, under the supervision of auditors and public representatives; otherwise there is fear of bias. The entire point of a lottery is the fairness inherent in randomness. If that is not the point, and everything is managed from above and fixed in advance, why engage in a lottery procedure at all?

Apparently the lot is a means through which God communicates His word. Sometimes a miraculous process of this sort—in which each tribal prince draws a slip bearing the name of his own tribe—persuades the public more than a verbal declaration from God Himself, especially since that declaration would have come through Moses rather than directly to the nation as a whole.

Two Kinds of Lottery

It therefore seems that the function of the halakhic lottery in halakha (Jewish law) differs from the lotteries we ordinarily know. Ordinary lotteries are meant to leave the decision to chance, and that is the fair solution when there is no substantive or essential basis for dividing or deciding the matter before us. Such lotteries are not intended to reveal any truth; their purpose is to find an optimal form of division or decision when there is no way to arrive at, or even approach, the truth.

By contrast, the halakhic lottery is aimed at bringing the word of God before the public in a direct way, without the need for direct divine speech to the public. God speaks to us through the lot. The role of a halakhic lottery is to reveal the true solution, not merely to carry out an optimal and fair division.

Is This a Sweeping Theological Claim about Randomness in the World?

One might infer from this that the view according to which there are random processes in the world is simply mistaken. At first glance, our remarks seem to imply that randomness is nothing more than a tool in the hands of divine providence.

But that is not our claim, and it is probably not entirely correct. We are speaking of two tracks of randomness. There is randomness that belongs to the ordinary course of the world, as part of the laws of nature, and it is genuinely random. It does not express God’s word or will, and it does not reveal any truth. But there is another kind of randomness whose entire purpose is to bring God’s word to us. In practice it is not random at all, even if from our perspective it appears to occur in a random manner.

To arrive at randomness of the second kind, one must conduct a lot according to the rules of halakha, with the required preparations and under the proper circumstances. Not every roll of the dice is a lot in the halakhic sense. Therefore, if what we want is a fair lottery whose purpose is simply an optimal division in the absence of knowledge, we may roll dice or choose any other fair procedure. The lotteries with which the Torah is concerned are different: their role is to reveal something, not merely to function in a situation of ignorance.

We should note that if every instance of randomness in the world were indeed providential, then in effect every random process would be an expression of God’s will and word in the world. In that case there would have been no need to define a halakhic procedure for the lot, and every random decision would have expressed God’s word. But from the sources—which limit the lot to particular procedures and circumstances—it appears that this is not the case.

Is There Also in Halakha a Lottery of the Ordinary Type?

One may ask whether every halakhic lot is of this special type. Is the purpose of every lottery in halakha to reveal God’s word, or are there also lotteries in halakha whose purpose is simply to reach a fair solution in the absence of information—that is, lotteries that are meant to be genuinely random?

The only other source in the Torah itself where we find a lottery is the two goats of Yom Kippur. We purchase two goats as identical as possible and place them before the Lord for the lot. It is very plausible to view the lot of the goats as an ordinary lot, unlike the lot used in the division of the Land. There is no truth here waiting to be clarified. The goats are genuinely identical; it is not that one is righteous and the other wicked, and the lot must reveal which is which. Rather, there is a desire to distinguish between two courses: one goat is sent to the Lord, and the other to Azazel. It therefore seems that in this case the lottery is indeed random.

There are, however, certain hints that even the lottery conducted there was not entirely of the ordinary kind. For example, when the lot was cast, the author of Gevurat Ari on Babylonian Talmud, Yoma 39a, comments that over the goat that goes to the Lord one says the words “For the Lord, a sin offering,” whereas over the one for Azazel one says nothing; that designation establishes itself automatically. By contrast, Rashi there writes that both designations must be produced by the lot, because this is not a mere clarification but part of the sacrificial rite itself. There is a requirement of a lot, and each of the two goats must undergo that process in its own right. Such a view hints at an understanding of the procedure there as a non-random halakhic lottery. It is not a lottery whose purpose is merely arbitrary decision; rather, there is a law of lottery that each goat must undergo. See also Encyclopedia Talmudit, entry “Goral,” pp. 421-425, for the details of the laws governing this lottery.

At first glance, the very abundance of details in the laws of this lot suggests that it is not just an ordinary lottery. Yet in the straightforward reading it really is just a lottery whose function is to decide, not to reveal any truth, as the Turei Even holds, and as stated above. The various laws were established either to ensure the validity of the lottery or for other reasons. The matter still requires further study.

The Special Character of the Lottery Process

Against the background of what we have said, it seems that the use of a lot—at least one whose purpose is to reveal God’s word and will—must be controlled on two planes:
1. The procedure of the lot.
2. The circumstances in which the lot is cast.

Indeed, today it is generally accepted that one should not use such a means without special circumstances and without a defined procedure, known only to those versed in the esoteric tradition. Below we will describe a Jerusalem tradition attributed to the Vilna Gaon that was used to conduct a lot in order to identify the bodies of the fallen members of the Convoy of Thirty-Five after the War of Independence. More broadly, aside from certain specific cases, we do not find free and unrestricted use of lots in halakhic practice.

Perhaps a similar conclusion can also be drawn from the Torah’s sparse use of lots—only in these two contexts. It would seem that one should restrict the use of this means solely to those places where we were explicitly commanded to do so.³ And indeed, below we will see examples of such an approach in the halakhic sources. On the other hand, we will also note that rabbinic literature presents several additional contexts in which lots are used as part of halakhic practice. We will conclude the chapter by describing one of the well-known cases in which a lot was used in modern times.

Additional Lotteries in the Bible

The Sages add several other places in Scripture where lots were used. For example, the selection of the elders for Moses’ Sanhedrin from among the tribes, and the determination of the surplus firstborn over the Levites for purposes of redemption; see Babylonian Talmud, Sanhedrin 17a. There are also several places elsewhere in the Bible where lots were used: in the death of Achan, in Joshua 7; concerning Jonathan son of Saul, had the people not redeemed him, in 1 Samuel 14; concerning the priestly watches, see 1 Chronicles 25:8; and concerning the wood offering, in Nehemiah 10:35. One may also mention in this context the lot cast by the sailors on Jonah’s ship to decide whom to throw into the stormy sea, and the lot—pur—cast by Haman. We will return below to some of these examples.

The Fundamental Attitude toward Lotteries

The verse in Numbers 34:1-2 states:

The Lord spoke to Moses, saying: Command the children of Israel and say to them: When you come into the land of Canaan, this is the land that shall fall to you as an inheritance, the land of Canaan according to its boundaries.

This verse is expounded by the Sages in Pesikta Zutrata there as follows:

To warn the court not to cast aspersions on the lots.

The Gemara in Babylonian Talmud, Sanhedrin 43b likewise expounds:

Joshua said to Achan: I beg you, do not cast aspersions on the lots, for the Land of Israel is destined to be divided by lot.

In the Responsa of the Geonim it is written:

No Jew has permission to disregard the lot, for the lot comes only from Heaven, as it is said: “By the decision of the lot the land shall be divided.” And one who transgresses the lot is as one who transgresses the Ten Commandments.

Similarly, the author of Havot Ya’ir, no. 61, writes immediately after citing the above responsum of the Geonim:

For we see from the Torah, the Prophets, and the Writings that they relied upon the lot, provided it was conducted without human calculation and without human manipulation through cleverness. Thus the land was divided by lot, and they also relied on the lot in the death of Achan and of Jonathan—had the people not redeemed him—and not on account of his confession. And it is said, “The lot is cast into the lap, but its every judgment is from the Lord.” Even among the nations this was accepted, as in the case of Jonah and of wicked Haman, according to the plain meaning of the verse. [See the responsum of the author of Yad David in Maged Shamayim, no. 14, who rejected the author’s words on the ground that Achan confessed on his own, and moreover there it was by direct divine command.] For it is highly plausible that if the lot is proper, higher providence attaches itself to it, as Scripture says, “Give a perfect lot.”

Havot Ya’ir writes that the basis for trusting a lot is precisely that it is done without human intervention; then the hand of providence rules over it. Later in his discussion he adds that a defective lot need not be obeyed, on the argument that had it been conducted properly the result might have been different. We will return to this below.

One must discuss whether these determinations were also said about the random sort of lottery when it is conducted according to halakha, or whether all this is relevant only to lotteries of the type used in the division of the Land, which express the will of God.

The Vilna Gaon’s Lottery for the Fallen of the Thirty-Five

One famous modern use of a lot concerns the identification of the fallen members of the Convoy of Thirty-Five.⁴ In the War of Independence, thirty-five fighters fell in a convoy that was supposed to reach besieged Gush Etzion, and the convoy was consequently known as the Convoy of Thirty-Five. After the war their bodies were found in a mass grave, and after attempts were made to identify them by various means, twenty-three were identified with certainty. Twelve bodies remained unidentified. Those responsible for the identification had to match each of the twelve missing names to the twelve anonymous bodies.

The families turned to the rabbi of Jerusalem at the time, Rabbi Tzvi Pesach Frank, and he decided to conduct a lot in order to identify the remaining twelve bodies. The lot was conducted according to a tradition preserved in Jerusalem and attributed to the Vilna Gaon, which had previously been used to identify victims of pogroms in Vilna. The lot was based on opening and leafing through a complete Bible at random seven times, locating names in the last verse on the page, and associating them with the missing bodies.

It should be emphasized that we are not dealing here with a lottery in the everyday sense. This was not an arbitrary and random procedure that would simply attach a name to each body, for the entire purpose was the true identification of the fallen so that they could be buried and commemorated properly. Clearly what was required here was a lottery of the same type used in the division of the Land—that is, a lottery whose role is to reveal the truth, a lottery that brings us a message from above.

The lot was conducted at night by candlelight, with the emotional recitation of Psalms, in the attic of the Jerusalem saint Rabbi Aryeh Levin, who directed the procedure, in the presence of two other rabbis—his son and his son-in-law—and representatives of the bereaved families: Reuven Mass, father of the convoy commander Dani Mass, and Yitzhak Dov ha-Kohen Persitz.

The first verse that appeared was “The earth is the Lord’s, and its fullness,” and those present saw in it a hint to the thirty-five fallen. After that they conducted the lot eleven times; the twelfth fallen soldier was identified automatically as the one remaining at the end without identification. Each time, one verse referred to falling in sanctification of the divine name, or to war and the like, and the second verse hinted at the name sought.

The names that emerged were as follows; see Raz, p. 115, from the protocol written by Rabbi Aryeh Levin himself:

1. Benjamin Bogalevsky — “And from the tribe of Benjamin by lot” (Joshua 21:4). It is noteworthy that the first identifying verse itself dealt with a lot.
2. Oded Ben-Yemini — “Is he not a Benjaminite?” (1 Samuel 9:21).
3. Yaakov Ben-Atar — “Every person who came to Jacob” (Genesis 46:26).
4. Yosef Baruch — “Joseph said: Bring your livestock” (Genesis 47:16).
5. Eitan Gaon — “The pride of Israel testifies against him” (Hosea 7:10).
6. Eliyahu Hershkovitz — “Elijah took the child” (1 Kings 17:23).
7. Yitzhak Zevuluni — “And of Zebulun he said” (Deuteronomy 33:18).
8. Alexander Cohen — “Let Your priests be clothed with righteousness” (Psalms 132:9).
9. Yaakov Cohen — “The Lord has sworn and will not relent: you are a priest” (Psalms 110:4).
10. Israel Marzel — “Babylon too shall fall for the slain of Israel” (Jeremiah 51:49).
11. Shaul Manuali — “One thing have I asked” (Psalms 27:4).
12. Yaakov Kotik.

The correspondence was complete, and those present had no doubt that the matter came from God.⁵ This description of the procedure clearly indicates that a non-random lottery requires preparations and authorized procedures, and then it works. Beyond the question whether such a lot is permissible, given the prohibition of divination, one must also ask whether this identification should be accepted as halakhically determinative. Rabbi Tzvi Pesach Frank ruled that it should, and so it was.

Thus, the match between the results and the names testified that the results were not accidental. This had two implications:
1. The act was not prohibited as divination.⁶
2. The results—the identification—were halakhically admissible.

B. Additional Lotteries in Rabbinic Halakha

Introduction

As noted above, halakha does not encourage the free use of lotteries.⁷ A particular procedure and particular circumstances are required in order to permit the use of a lot. Even so, there are several halakhic contexts in which the Sages instruct us to use a lot. Some of these are presented as interpretations of biblical verses, as noted above, while others are new halakhic contexts, such as the division of property among partners and the priestly lotteries. We will discuss those circumstances and their meaning in this chapter. In the next chapter we will consider the possibility of extending the use of such lotteries beyond the special circumstances listed here.

There are two main contexts in the Talmud in which lots are mentioned, beyond the division of the Land and the goats of Yom Kippur: the division of property among partners, and various lotteries among priests.

The Division of Property among Partners

Babylonian Talmud, Bava Batra 106b establishes that partners and heirs divide jointly owned property or an inheritance by means of a lot:

It was taught: Rabbi Yose says, “If brothers divided an inheritance, once the lot came up for one of them, all of them have acquired.” What is the reason? Rabbi Elazar said: Like the original division of the Land of Israel. Just as there it was by lot, so here too it is by lot. If so, just as there it was by ballot box and Urim and Thummim, so here too by ballot box and Urim and Thummim?! Rav Ashi said: By virtue of the benefit they derive from listening to one another, they fully resolve and transfer to one another.

The Rashbam adds there—and this also follows from the plain meaning of the Gemara—that the same applies to partners:

“Brothers who divided”—they selected two or three equal portions and afterward cast lots. The same law applies to partners.

It would have been possible to understand Rav Ashi as disagreeing with Rabbi Elazar, and holding that the lot itself does not effect acquisition. But the Rashbam there rejects that reading and explains that the parties’ settled intent replaces the Urim and Thummim, not the lot itself.⁸

This is also what emerges from Maimonides’ ruling, Laws of Neighbors 2:11:

If brothers divided and cast lots between themselves, once the lot came up for one of them, all of them have acquired, by virtue of the benefit that came to them through each listening to the other concerning what they agreed upon; each one of them fully resolved and transfers to his fellow.
Ra’avad’s gloss: These words have not been clarified.

The commentators struggled to determine what exactly the Ra’avad meant in his objection. In light of what we said above, it may be that he means to argue that settled intent is not required when there is a lot. That is, in his opinion Rav Ashi disagrees with Rabbi Elazar—unlike the Rashbam and Maimonides.

If our suggestion is correct, then according to the Ra’avad the lot substitutes for settled intent and can itself create legal acquisition. According to Maimonides and the Rashbam, the lot merely clarifies and defines the portions, but the actual acquisition is effected by settled intent, like any other legal transaction.

What Do We Learn from the Division of the Land?

In any case, the Gemara derives the law of using a lot in dividing jointly owned property from the division of the Land. But this is puzzling. In the division of a partnership or an inheritance, the lot is not the expression of God’s word; rather, it is an agreed mode of division when there is no truth to be discovered. The lot here does not clarify any truth; it merely offers an optimal and fair way to divide an asset among several parties who jointly own it.

Now according to our suggestion concerning the Ra’avad, one could indeed learn from the division of the Land that the lot has the power to define matters in place of the owners themselves. In other words, the lot determines what is correct, and therefore no formal conveyance is needed. Maimonides and the Rashbam, however, maintain that the lot is only a means of clarification and has no substantive legal force. According to them, the difficulty remains: what exactly is learned from the division of the Land, and how is it learned?

The medieval authorities disagreed as to whether the lot also transfers ownership of the portions to the partners, or whether it merely clarifies the portions and must be supplemented by a formal act of acquisition, such as taking possession. We should emphasize that this does not necessarily coincide with the dispute between Maimonides and the Ra’avad just mentioned, for one might say that according to both views settled intent is required in order to acquire, and the question is only how that settled intent is generated—with or without an additional formal act. The Lehem Mishneh there links the disputes in precisely this way, which is how he understands the Ra’avad’s objection. In his view, the position of Maimonides and the Rashbam is that no formal act of acquisition is required, whereas the Ra’avad holds that such an act is required.

According to our proposal concerning the Ra’avad, there is a substantive lesson here from the division of the Land. In any event, according to the other views, no one learns from the division of the Land the very permission to use a lot. The questions concern only the modes of acquisition. This implies that there is no principled problem with deciding by lot in such a case, and no principled problem with using a lot at all. In light of this, it would seem that there is no impediment to using a lot in any other context that requires a decision, whenever we may wish to do so.

Reservations about Conducting a Lot

Still, we do find reservations about conducting a lot in other circumstances. For example, the author of Netivot ha-Mishpat, no. 154, subsection 6, writes that the law of the lot applies only where one is dividing the physical parcel of land itself, as learned from the division of the Land. But in disputes concerning the laws of neighbors one may not decide by means of a lot; they have no remedy except to reach a compromise.

One might have understood that the problem lies in the settled intent of the neighbors, since a lottery is like asmakhta, and there is no firm commitment to bind oneself to its result. But if so, it is not clear why one should not learn from the division of the Land that settled intent exists even in such a case. It is therefore more reasonable to understand that the problem is that there is some prohibition against conducting a lot in a situation not exactly parallel to what was learned from the Torah.

In Pitchei Teshuva, no. 173, subsection 2, the author cites Shevut Yaakov 3:162 to the effect that a lot is effective only where the division is not made in linear order. That is, if partners wish to divide property in such a way that whoever comes up first in the lottery may choose his portion, that is ineffective. Only a division like the division of the Land is effective—namely, when the name of the tribe comes up together with its portion. Here, however, it seems fairly clear that the problem is the settled intent of the participants.

Lotteries among Priests

We also find lots in halakha with respect to priests, in two contexts:
1. The priestly service in the Temple—determining which members of the priestly family on duty will serve, and when; see Babylonian Talmud, Yoma 22a, Jerusalem Talmud, Yoma 2:1, and Maimonides, Laws of Daily Offerings and Additional Offerings 4:1 and 4:3.
2. The division of their portions; see Babylonian Talmud, Shabbat 148b, and Maimonides, Laws of Festivals 4:20.

Here too it seems that the lots do not clarify any truth but create as fair a distribution as possible. And indeed, there are not many detailed laws governing these lotteries, which fits well with viewing them as mere lotteries in the ordinary sense.

C. The Use of Lotteries in Other Halakhic Contexts

Introduction

In later halakhic literature, several discussions arose concerning the use of lotteries—for example, in Magen Avraham, Orah Hayyim 132:2, regarding the recitation of Kaddish, and elsewhere. In a number of sources there is an assumption that it is forbidden to use a lot where there is no clear source that requires it, or at least explicitly permits it. We will discuss here two principal sources from Sefer Hasidim. But before doing so, we should briefly introduce the prohibitions associated with the use of lots.

The Prohibition of Inquiring by Means of Lots

In Sifre there is an exposition deriving from the verse “You shall be wholehearted with the Lord your God” that it is forbidden to inquire by means of lots. These words are brought in Tosafot on Babylonian Talmud, Pesahim, and are codified as law in the Shulhan Arukh and the Shakh, Yoreh De’ah 179:1:

One may not inquire of astrologers, nor by means of lots. Gloss: because it is said, “You shall be wholehearted with the Lord your God” (Deuteronomy 18:13), as cited by the Beit Yosef in the name of Tosafot on Pesahim and in the name of Sifre. All the more so, it is forbidden to inquire of diviners, soothsayers, and sorcerers, as ruled in Piskei Mahara”i, no. 96.

In the responsa Ha-Elef Lekha Shlomo, Orah Hayyim no. 62, Rabbi Shlomo Kluger writes concerning this prohibition as follows:

You asked me to explain how we customarily cast lots regarding Kaddish and the like, when the Shakh in the name of Tosafot wrote that one does not inquire by lots. Know that Tosafot meant cases where one asks the lots about the future: whether a sick person will live, or whether a lost object will be found, and the like. About future matters one may not inquire, for it is written, “You shall be wholehearted with the Lord your God.” But to cast lots between two possibilities in order to know whether something belongs to this one or to that one—this is certainly permitted. Here there is no place to say “You shall be wholehearted,” for in the Temple they cast lots to determine who would slaughter, and so forth. Likewise, the Mishnah and the decisors state that one may not cast lots on a festival—implying that on a weekday it is permitted. And Scripture explicitly says, “Only by lot shall the land be divided.” How could the Holy One have commanded something improper? It follows necessarily that in such a case there is no prohibition of lots at all. Therefore, casting lots over Kaddish or the like involves no concern or doubt whatsoever.

The distinction here is unlikely to be between past and future. Rather, it seems to refer to the distinction between the two kinds of lottery we proposed above: when the purpose of the lot is to clarify something, then one faces at least an aspect of the prohibition of violating “You shall be wholehearted.” But when the lot is intended to find a fair solution to a problem that cannot be substantively decided, there is no impediment to doing so.

The two sources brought to support this distinction—the Temple lottery and the division of the Land—are of different kinds. As we have seen, the lot used in the division of the Land was intended to clarify something, and therefore it is not similar to the priestly lottery in the Temple. We therefore concluded that a lot like the one used in the division of the Land is indeed prohibited except where the Torah itself commanded it. According to this, one cannot bring proof from there to our case, since there it was done in a unique manner, through the Urim and Thummim and by God’s own instruction. So that source creates no difficulty, but it also cannot serve as proof—as was noted by Yabia Omer VI, Hoshen Mishpat no. 4, section 6. By contrast, the Temple lottery proves nothing, because there the lottery was not intended to reveal any truth, and therefore in any case there does not appear to be any problem with conducting a lottery of that sort. Of course, if we were to see the result of such a lottery as clarifying some fact, and not merely as providing a fitting solution to a distributive problem, then we might indeed violate “You shall be wholehearted.”

The conclusion is that lots intended to clarify something are forbidden on account of “You shall be wholehearted,” unless the circumstances are כאלה in which the Torah itself introduced the possibility of casting a lot. Ordinary lotteries, by contrast, present no problem. In the final analysis, Rabbi Shlomo Kluger’s two proofs are problematic, but his distinction is probably correct as a matter of halakha.

Of course, beyond the issue of “You shall be wholehearted,” there is also the problem of settled intent and asmakhta, which Yabia Omer also discusses there. It is possible that using a lot would constitute a prohibition because one treats a legally invalid agreement as though it were valid. Here the lot may raise a problem of asmakhta, perhaps even as a form of theft, since it results in the taking of money that the person had no firm intent to give. We will return to this below.

In Yabia Omer, the discussion concludes with the question whether it is permitted to conduct a lot by opening a Torah scroll in order to learn something from it, similar to what was done in the lot concerning the fallen of the Convoy of Thirty-Five. He tends to permit it, and writes as follows:

However, the Hida wrote in Hayyim Sha’al, part 2, no. 38, section 41, that it is permitted to open the Torah in order to see what verse comes up. We have indeed seen elderly rabbis who, in times of distress, would open the book and look at the first verse, as a kind of lot. What Maimonides wrote, as cited at the beginning of Ma’aseh Roke’ah, that one should not open a Pentateuch by way of lots, refers to someone who goes door to door making lots for women and men in the manner of the gentiles. But one who wishes to consult the Torah privately for himself is permitted.

It is not clear in what respect this lot differs from any other lot. Is it the fact that it is conducted through a Torah scroll? At first glance, this too is a lottery whose purpose is to clarify facts, and it should therefore fall under the prohibition of “You shall be wholehearted.” Apparently these are lots conducted according to tested traditions, like the Vilna Gaon’s lot, and in such cases there is permission for someone who knows and understands the proper method to conduct them. Even so, the matter remains highly problematic.

An Unfair Lottery

Several later authorities write that if a lot was conducted unfairly—whether intentionally or by mistake—it is invalid. The basis for this is the discussion in Babylonian Talmud, Bava Batra 106b-107a, concerning the nullification of a division made by lot. See also Encyclopedia Talmudit, entry “Goral,” pp. 426-429.

One of the later authorities who dealt with this at length was the author of Havot Ya’ir, no. 61. He argued that the lot is invalid even if there is no logical explanation why it should be invalid. The mere fact of human intervention, even if it did not affect the statistical chances of winning at all, suffices to nullify the validity of the lot. He explains this by saying that the validity of the lot rests on the fact that no human hand is involved and that its essence is a decision from Heaven. Therefore, wherever human intervention enters, the lot no longer expresses what Heaven wants, and it is void.

According to our approach, these remarks should be restricted to a lottery whose purpose is clarification. But where the purpose of the lottery is decision or fair division, everything should depend on statistical fairness. If the intervention truly did not impair the chances of each party, there is no reason not to use the result of the lot. From the words of Havot Ya’ir it emerges that he sees even the first type of lot as an expression of God’s word, for he writes:

But if the lot is defective, there is no basis for saying concerning the one who won, “This is from the Lord”—whether the defect came through human contrivance or through error. In any event, the lot is defective, and each person can say: had the lot been conducted properly, it may have stood in my favor, whether on account of my fortune or on account of my prayer that God grant me success in all my affairs—more so than what is said in Babylonian Talmud, Bava Metzia 106a, that a tenant farmer can say, “It would have been fulfilled for me: ‘You shall decree a thing, and it shall be established for you,'” as it says, “You support my lot.”

That is, he sees even a lot whose purpose is to divide and decide as an expression of God’s word and will. The explanation is that even someone who wins an apparently random lottery may have won because of his prayer, or because of some merit for which Heaven wishes to reward him and therefore causes him to win. In that case, if the result was not produced by Heaven, each participant can claim that had Heaven been left to determine the matter, he might have won on the strength of his merits.

The Words of Sefer Hasidim

The primary source cited by the decisors concerning what is forbidden and permitted in casting lots is Sefer Hasidim.⁹ Yet there are two contradictory passages there, and a number of later authorities discuss their relation. The author of Yabia Omer discusses this and cites various sources that address the contradiction, ultimately concluding that perhaps the author of Sefer Hasidim changed his mind. We will propose below a fitting explanation of his words, so that there will be no need to assume any retraction.

In Sefer Hasidim, section 679, the author discusses a lot like that used for Jonah son of Amittai on the ship, and writes:

If people are traveling at sea and a storm wind rises against them to break the ship or sink it in the sea, while the other ships pass in peace, then it is known that there is someone on the ship who is guilty, and they are permitted to cast lots. On whomsoever the lot falls three times consecutively, they are permitted to cast him into the sea. They pray that it not fall upon the innocent but upon the guilty, as it says, “O Lord God of Israel, give a perfect lot”; and it says, “The lot fell on Jonah”; and it says, “Pick me up and throw me into the sea.” Why did they not say to Jonah, “Throw yourself into the sea”? Because he did not wish to cast himself in, and moreover there were gentiles on the ship, and it was preferable that they throw him in. And if there is there a small vessel or tub, they should not cast him into the sea but place him there in that vessel; if he is saved, he is saved. Before one goes to sea, if he has committed a sin involving stoning, even unintentionally, such that if a storm should come they would cast lots and on whomsoever it fell they would throw him into the sea, he should not set out to sea.

But in section 701 of the same work, the author writes as follows:

People on a ship, if a storm wind arises, are not permitted to cast lots, for if the lot falls on one of them they will need to throw him into the sea. One must not do as was done with Jonah son of Amittai. If asmakhta does not bind even in matters of money, all the more so in matters of life one may not rely upon a lot. And as for what is written, “Saul said, Cast between me and Jonathan my son, and Jonathan was taken”—there the Ark was present, and every judgment is from the Lord, and they knew in what manner to cast the lot. But now one may not rely on a lot, as it says, “And I will cast lots for you here before the Lord our God.” Even in monetary matters one does not cast lots except when dividing equally. One does not place two pieces opposite one piece unless the two equal the one, nor a large piece opposite a small piece, except when they are equal by reasonable assessment. And because on Yom Kippur two goats were needed for the lot, they had to be equal in appearance and in height.

On the face of it, these passages seem contradictory. In the first source he writes that it is permitted to cast lots, as the sailors did in the Book of Jonah. In section 701, however, he writes explicitly that it is forbidden to cast lots, unless one stands “before the Lord our God” and knows the proper procedure for doing so—which nowadays, apparently, no one knows.¹⁰ He adds that even in monetary matters one casts lots only if the division is equal, as it was with the two goats. That is, permission to cast lots exists only if we do so exactly as the Torah commands. We saw something similar in the previous chapter, where reservations arose concerning the use of a lot that does not resemble what appears in the Torah.

Resolving the Contradiction: The Need for an Indication in Order to Conduct a Clarifying Lottery

From what we have said in the previous chapters, it follows that if there is a prohibition on casting lots, then clearly we are dealing here with a lottery whose purpose is to clarify the divine will, not a distributive lottery in the ordinary sense. Only such a clarifying lottery, if done improperly, can be forbidden. This is also why distributive and decisive lotteries—not clarifying lotteries, which are performed only on the basis of tradition—are in fact used in halakha even in places where we were not commanded to do so, and even without any tradition.

We must now ask: what is this lottery meant to clarify? If we return to the example of Jonah the prophet, it is obvious that the purpose of the lot is to determine who the sinner is on whose account the storm arose. In other words, throwing that person into the sea will calm the storm and remove the danger. By way of comparison, suppose there were a ship carrying excess weight and, in order to save it, one needed to choose one person to throw overboard so as to lighten the load. In that case there would be no obstacle in principle to conducting a lot, because that would be a decisive rather than a clarifying lottery.¹¹

Thus, the subject of Sefer Hasidim is a clarifying lottery, whose purpose is to identify the sinner because of whom the storm threatening the ship arose. Precisely for that reason the question of the prohibition on casting lots arises here. This itself is the root that can illuminate and remove the apparent contradiction in his words.

First, we must notice that a clarifying lottery in such a situation is extremely problematic. How do we know that the storm arose because of some sinner aboard the ship? Does every storm arise because of a particular sinner? And how do we know that the lottery will in fact reveal the sinner on whose account the storm came? We should remember that we are about to throw a person into a raging sea and thereby, in all likelihood, bring about his death. This is the root problem with which Sefer Hasidim is grappling in these passages.

Indeed, in the second passage, where he forbids conducting the lottery, he points to two problems: one may not rely on the lottery, and there is also a problem of asmakhta. What is the relation between these two reasons? Apparently, throwing a person overboard against his will requires clear knowledge that he is indeed the guilty party and that throwing him overboard will save the ship. In other words, this is a clarifying lottery, and we have no right to conduct it without an explicit command and without knowing the proper procedure. But what if all the passengers willingly agree to do this in order to save themselves? Here Sefer Hasidim raises the argument of asmakhta. Such a lottery does not create settled intent, because everything remains shrouded in uncertainty: it is not clear whether the lottery truly reveals the correct person, nor whether throwing him overboard will in fact save the ship. Therefore, in the end, he forbids doing it.

But if we pay attention to the first passage, we can now see a fundamental difference that underlies the apparent contradiction between the two passages. The second passage speaks of a ship caught in an ordinary storm. The first passage deals with a highly unusual case: there is a storm at sea, but only this ship is in danger; the storm does not strike the other ships. In such a situation, writes Sefer Hasidim, it is known that there is someone guilty on the ship, and therefore they may cast lots.

That is, we are dealing here with a situation in which there is a clear indication that the storm is due to a sinful person and that throwing him into the sea will solve the problem. If so, all the problems that led to the prohibition in the second passage do not exist in the situation described in the first. There there is a divine indication that there is a sinner on the ship and that the storm is because of him. This is parallel to the Urim and Thummim, which reinforced trust in the results of the lot used in the division of the Land. When there is a divine indication showing us that the lottery will lead to the clarification of the true truth, we are permitted to conduct even a clarifying lottery, not only a decisive one.

Accordingly, a clarifying lottery may be conducted only when there is an independent indication that the result of the lot is indeed a true result.¹² In his article on the separation of Siamese twins, M. Avraham argues that in a situation where Siamese twins endanger one another, one may conduct a lot even according to Sefer Hasidim, because separating the twins will, with high probability, save them for purely medical reasons and without any mysticism. No divine indication is therefore required that the lot has indeed clarified the truth. We may now add that the lottery between Siamese twins is a decisive lottery, not a clarifying one, and therefore the problem does not arise there in the first place.

And what of the prohibition on conducting a lot under the rubric of “You shall be wholehearted”? It seems that where the lot is justified—either because there is a divine indication of its validity, or because it is a decisive rather than a clarifying lottery—there will also be no prohibition of “You shall be wholehearted.” We may add that in a case of danger to life, even if there were a prohibition against conducting the lot, if it is reasonable to think that the lot would in fact bring rescue, then the prohibition would be overridden by the imperative to save life.

A Concluding Note

After writing all this, we found that several later authorities had already noted these points, and some of them wrote just as we have. See Tzitz Eliezer 18:48, beginning with the words “But in truth,” and the sources cited there that interpret Sefer Hasidim in this way. Even Yabia Omer himself says this in subsection 2 of that responsum and elaborates on it at length. It therefore remains somewhat unclear how he could write in subsection 6, on the basis of the same contradiction, that Sefer Hasidim had changed his mind.

In any event, the conclusion of Yabia Omer there is that there is no permission to cast lots regarding human lives, and he stakes his position precisely on this explanation: in his view, only the clear divine sign that the other ships in the same place were not threatened by the storm at all—the source for this construal of Sefer Hasidim being the midrash (rabbinic exposition) Pirkei de-Rabbi Eliezer, chapter 10, cited in his discussion there—was what allowed the lot to be cast with respect to lives; without that, the matter is forbidden.¹³

With all due respect, according to our analysis this conclusion is incorrect. The problem with conducting a lottery involving human lives exists only when one seeks by means of the lottery to determine what the truth is, in which case the prohibition of “You shall be wholehearted” arises. But a decisive lottery may be conducted even without any divine indication. Put differently: there is no special prohibition against casting lots regarding human lives. The prohibition is against conducting a clarifying lottery—whether concerning lives or any other matter—without a command and without an independent indication that the lot is indeed valid. Therefore, when one wishes to conduct a decisive lottery rather than a clarifying one, one may do so even without any indication at all; and the halakhic lotteries that are conducted without any such indication, such as the division of joint property or the priestly lotteries, prove the point.

Footnotes