Regarding an offense in its own right

With God’s help

Dacha – 2016

introduction

'A crime for its own sake' is an act of transgression for a positive purpose. There is a topic in Tractate Nazir that deals with this concept, and it seems to refer to it positively, but it leaves its meaning and definition quite vague.

Many commentators attempt to shift the charged meaning of this concept, and the positive attitude towards it (as implied in that issue), into more moderate and agreed-upon channels. They claim that these are acts that are permissible from a halakhic perspective, an interpretation that is in line with accepted conventions regarding the totality of submission to halakhic law. For the court, the reason for adopting such an interpretation is not interpretive, since these interpretations are usually extremely narrow in terms of the course of the issue (as we will note below), but rather an a priori assumption (which on its face seems very justified) according to which there is no halakhic legitimacy for an offense. The claim that there is halakhic legitimacy for an offense is not only problematic in relation to accepted perceptions of halakhic law, but contains a real logical contradiction: if there is halakhic legitimacy, then why is it an offense, and if it is an offense, then it cannot have halakhic legitimacy. A detailed summary of the various opinions and references can be found in the article by Rabbi Zvi Haber, 'Offense for the Sake of God', Ma'aliot 21, Av 555 (hereinafter: Rabbi Haber).[1]

Rabbi Haber divides the references he found to the issue of 'offense for its own sake' into three principled positions:

1. A mitzvah that forbids a transgression: The transgression is a temporary instruction that this is the proper way to act in that situation.

2. The supremacy of intention: In some 'higher' reality, only intention matters, not the act.

3. Retrospective treatment: Initially, one must act according to the law, but if the intention is pure, the retrospective treatment of the offender is positive.

It is worth citing Rabbi Haber's concluding words here:

It seems to me that a study of these methods leads us to the conclusion that the main point of the debate is only in relation to the explanation of the concept of 'offense for its own sake.' From a practical point of view, the differences between the methods, if any, will be minimal. According to everyone, from a practical point of view, a person must observe the 313 commandments in their details and exactness; one must obey the temporary instructions of a prophet and a court of law in everything they say; according to everyone, there are situations in which one must decide whether to adhere to one value or another, and the examination must be careful and meticulous, and made by a great person; according to all opinions, after the giving of the Torah, we live in the world of halakhah and are subject to it. It seems to me that everyone would also agree that we are not capable of examining the value of every act, and it is possible for a person to act outside the bounds of halakhah and receive a reward from heaven, but that one should not act in this manner. The main point of disagreement between them is in the explanation of the concept of 'offense for its own sake,' a mental explanation of historical actions, and also in a mental view of the world of commandments and man's place within this world.

A disagreement between the different approaches from a practical perspective will mainly be a clash between different values, and they will disagree on the question of what the true standard is by which to decide in this place. Is the righteous or the great man of the generation permitted to order the commission of a forbidden act and even act in it himself; or is it better to "remain and do not do it" unless there is a prophet or a worthy court among us; is this true in every practical question or only in "small" matters and the like – but this question does not depend specifically on these approaches, but mainly on the question of the individual's power in these decisions. It is very difficult to imagine a reality in which there would be a practical disagreement due to a different view of the concept of "offense for its own sake."

According to the picture presented there, the argument seems to be purely theoretical, and in practice, according to all opinions, there is a complete obligation to obey the law in every situation and in every case. A transgression per se is an action that is permissible from a halakhic perspective. Even according to the methods that belong to the first direction, Rabbi Haber states that in fact it is an act done according to a rabbi or a prophet. Although the incident of Yael, which is cited in the Gemara as an example, contradicts this criterion, he states from Rabbi Kook's response that since the situation was clear and unambiguous (?) she acted in the 'mission' of a rabbi, and this is like an action according to the instruction of a rabbi and a prophet, which is a halakhic permissible action (the term 'transgression' is only a noun).[2]

It should be noted that after this determination, the distinction between an offense under the direction of the Jewish Code and a mere offense is emptied of its content. After all, any person who is in an extreme situation and thinks that he is required to commit a halakhic offense will say that this is a clear situation and therefore he will act according to the law of his mission. Therefore, at least de facto, this is a permit for acts that are offenses per se against the halakhic law and without the control of an authorized entity.

In the present article, I would like to show that this conclusion is nothing more than a reflection of the a priori basic premise that accompanied Rabbi Haber throughout the entire article (as he himself notes), and which also accompanies many commentators (especially in light of the concern about Shabtai approaches), according to which there is no halakhic legitimacy for an offense.

The present article has two main goals: 1. Proposing a possibility to see the mimra 'great transgression for its own sake' simply, while explaining the course of the issue in Bavli Nazir, and through a conceptual clarification that will resolve the aforementioned logical problem. 2. In the course of our discussion, we will point out common inaccuracies in the interpretation (not necessarily of Rabbi Haber) regarding several opinions on this issue (mainly with regard to the Netziv and the Baal HaEchirim).

There is no pretense here to detail and review all the sources on the subject (for that, see Rabbi Haber), and we will concentrate on those sources that seem relevant for the purposes of the discussion here.

'A crime for its own sake': The issue of Nazir 23

We begin by quoting the Gemara passage in Nazir:

Rabbi Bar Yitzchak said: A sin for its own sake is greater than a mitzvah not for its own sake. And Rav Yehuda said: A man should always engage in Torah and mitzvahs, even if it is not for the sake of oil, because from the sake of oil comes the oil! But mother: as a mitzvah not for its own sake, as it is written: +Judges the Lord+ Blessed are you among women, the wife of a man whom you have bought in the tent, blessed are you among women, from which women are in the tent? Sarah, Rebecca, Rachel, and Leah. Ar Rabbi Yochanan: Seven of the evildoers' faults were committed by the husband of that wicked man at that time, as it is said: +Judges the Lord+ Between her legs he knelt, fell, lay down, etc. And is it not that he rejoices over the evil of his own mouth! Ar Rabbi Yochanan: All the good of the wicked is nothing but evil with the righteous, as it is said: +In the beginning, he did not keep you from speaking to Jacob from good to evil, in Solomon evil – benign, but good, mother, is it not? But not the sabbath: His good is evil, sabbath.

The story cites as an example the act of Jael, the wife of Heber the Kenite, who had sexual relations with Sisera in order to kill him. A little later, a similar assessment is made regarding Tamar's act:

Ula said: Tamar committed fornication, singers committed fornication, Tamar committed fornication – kings and prophets came out of her, singers committed fornication – several tens of thousands of Israel fell upon her.

We should note that there are other cases mentioned there in the Sugya, such as Esther and the daughters of Lot. Although the Sugya does not explicitly link to the actions of the daughters of Lot (who initiated the marriage of their father, believing that the entire world had been destroyed, and that this was the only way for humanity to continue to exist), it is difficult to avoid the necessary connection. The Sugya there refers in several places and in several contexts to the action of the daughters of Lot as a commandment (as opposed to the action of Lot himself),[3] the context in the Sugya simply indicates that the action of the daughters of Lot, although it involved incest,[4] was a "transgression in itself."[5]

There is a similar issue in Blessings 3a (on the Mishnah of 'Et La'esh La'), which says:

Bar Kafra taught: What is a small passage on which all the Torah depends – +Proverbs 3+ In all your ways know Him, and He will make your paths straight. Rava said: Even to speak a transgression. [Rav Papa said: This means that a woman says: 'Genba afum mahtarta rahmana kiri.'] [6]

We will not address this issue directly here.

Two primary directions in interpreting the issue

As stated, many commentators have interpreted the issue in such a way that it is not a real offense, and the reasons for this are explained below.[7] Indeed, Rabbi Ibn Shu'ayb, in his sermons, writes as follows:[8]

Therefore, a person who is truly a man uses it in things that are necessary for the world, as the late Rabbis said, "In all your ways, know him." And even when it comes to transgression, an interpretation of eating... which is a matter of causing transgressions, they will intend them for the sake of Heaven. And some interpret them as even a literal transgression if the intention is for the sake of Heaven, as they said, "Great is a transgression for the sake of Heaven," etc., and as in the case of Yael.

It should be noted that his words indicate that our issue is by all accounts interpreted as a real offense. The hesitation and controversy he brings up pertains solely to the issue of the above-mentioned blessings.

Below it appears that the Netziv also interprets the issue in this way. As we said, this interpretation seems closer to simplifying the issue, but the fundamental difficulty of granting halachic legitimacy to offenses (which is probably what led the other commentators to interpret it differently) does indeed require clarification.

The course of the issue

In order to substantiate our argument, we must examine in detail what emerges from the course of the issue itself. To clarify the discussion, we will divide the course of the Gemara into stages, and discuss each of them separately.

1. The basic determination of the Rambam. The Gemara begins with a principled determination that a transgression for its own sake is greater than a mitzvah for its own sake. On the face of it, the simple assumption is that this act is permissible and even desirable, and the determination deals only with the question of the value of such an act. The Rambam states that such an act is more important than a mitzvah for its own sake. And what about a mitzvah for its own sake? It seems that at least at this stage it is certainly more important than the two.

Here we ask ourselves the following question: If the term 'offense for its own sake' is indeed interpreted as a halakhically permissible act (for example: desecrating Shabbat in order to save a life), would we say that it is equivalent to a mitzvah that is not for its own sake? Is it even justified to call it an 'offense'? After all, this is a complete and important mitzvah, and as is known, both the one being asked and the one asking shed blood. Such an act is certainly equivalent to a mitzvah for its own sake, and even more so.

From this it is clear that 'offense for its own sake' is not a halakhically permissible act, and certainly not a halakhically mitzvah. At most, it is a permissible act retrospectively, but no more than that. Even later in the issue, when the assessment of the act changes, it is reasonable to assume that the meaning of the concept itself remains unchanged, since the negotiation is about the reference to this concept and not about its actual definition.

2. Difficulty. Now the Gemara makes the above statement difficult by the instruction that one should engage in the practice of the Tomatz without becoming a fattener, since from this one will end up making them into fat.

On the surface, it is not clear what the issue is here? Why does the fact that one must engage in the mitzvot not to anoint contradict the claim that a transgression for the sake of one's own life is better than a mitzvah not for the sake of one's own life? Was there an implicit prohibition in the words of Rabbi Yosef HaV not to engage in the mitzvot not to anoint? Why is it not possible to say to what extent we must engage in transgressions for the sake of one's own life, and therefore there is no problem with it being on the same level as the mitzvot not to anoint?

3. Excuse: The Gemara resolves this "problem" by changing the mutual evaluation between a mitzvah not for its own sake and a transgression for its own sake: Rana's mimra should be read as stating that these two are equal (and not that a transgression for its own sake is greater, as we thought in the 1st chapter).

This 'excuse' is also unclear. How does it resolve the issue? And if these two are equal, then it is now clearer why the commandment not to eat oil also has value? Isn't it possible that there is value and yet a greater sin for its sake, or perhaps the opposite: that there is no value for it, and therefore the sin for its sake also has no value. Why does this change in status answer the issue (be that as it may).

4. Evidence: The Gemara continues with the evidence from the verse that says: "Blessed among women is Yael," meaning that Yael is more blessed than the four mothers.

This "evidence" is also not entirely clear. First, why are the mothers considered to be performing the mitzvah not to fatten?[9] Second, it suggests that Yael is better than them, as in the version at the beginning of the passage, and not that they are equal as the Gemara understood the conclusion to be. If so, how does the verse constitute evidence for the Gemara's excuse? It seemingly takes us back to the problematic understanding that existed at the beginning.

5. The role of pleasure. The discussion ends with a side issue: How is Yael's act considered a sin in and of itself, since she enjoyed a sin? To this, the answer is that the good of the wicked is bad for the righteous, meaning that there was no pleasure in the act here. This is a point that is not related to the body of the issue, and we will return to it below.

If so, the course of the issue is not completely understood: neither the question, nor the excuse, nor the evidence for the excuse that is presented in the verse. It seems that we must read the course of the issue completely differently, and then all the difficulties will disappear, as we will suggest in the next section.

A proposal to simplify the issue

The initial difficulties stemmed from the assumption that the subject of Ranvi's mimra is a sin for its own sake, and Ranvi came to establish a positive attitude towards it. But this is probably a mistake, and it seems to have led to all the other difficulties in understanding the issue: We suggest that Ranvi's initial determination is interpreted in the initial stage precisely as an assertion about a mitzvah not for its own sake (and not about a sin for its own sake, as we would see in the simple understanding, and as above). The content of the assertion is that one should not perform a mitzvah not for its own sake, since it is even worse than a sin. However, there is no point in comparing a mitzvah not for its own sake to a sin for its own sake, since then this would be a trivial comparison (it is clear that a mitzvah not for its own sake is better than a sin for its own sake). Therefore, Ranvi compared it specifically to a sin for its own sake. But the bottom line is that his intention is to say something about a mitzvah not for its own sake, and not about a sin for its own sake, as is the mushnat.

According to this proposal, R.N.B.I. reiterates that one should not perform a mitzvah that is not for the sake of it, and that it is even worse than a transgression for the sake of it. This shows that his simple and clear assumption was that there is no God to permit committing a transgression for the sake of it. The innovation is that a mitzvah for the sake of it is even worse. This is clear evidence that a transgression for the sake of it does not mean a normal halachic rejection (such as desecrating Shabbat to save a life), but rather an actual transgression.

Now the Gemara makes it difficult for R'Nabi: since he says that one should not perform a mitzvah for its own sake (and that it is even worse than a transgression), then we have accepted that one should definitely perform a mitzvah for its own sake, since this leads to performing a mitzvah for its own sake. If so, a mitzvah for its own sake is a positive act (though not a perfect act like a mitzvah for its own sake). Now the Gemara's question is interpreted simply.

And indeed, when we examine Rashi's language carefully, it seems that he had difficulty understanding the issue, and it is likely that he also understood the process in this way. Thus he writes (in the parallel issue in Horyot 10b, in the Bible, 'Zimri Zina', and also see here in a less unambiguous way):

According to Dekamar, a greater sin for its own sake than a mitzvah for no reason – from the point of view of a mitzvah for no reason, it is a violation, and did not Rav Yehuda say, etc.

If so, Rashi writes that the Mimra of Ranbi is interpreted as the abrogation of a mitzvah that is not for its own sake, and that is where the issue turns. The Rosh also writes in his commentary on the page in our issue.

In the next stage, the Gemara settles the issue by stating that a transgression for the sake of God is not greater than a mitzvah for the sake of God, but is equal to it. According to our method, the question is not a question of hierarchy, who is better than whom, but of absolute value. The Gemara now explains that the meaning of Ranbi's mimra is not as understood in the question (i.e., that the subject is a mitzvah for the sake of God), but should be understood simply, meaning that it comes to praise the one who commits a transgression for the sake of God. The comparison does not come to rank the relationship between a transgression for the sake of God and a mitzvah for the sake of God, but to say that just as a mitzvah for the sake of God must be done (and certainly not to nullify a deed because we do not intend it for the sake of God), so too must a transgression for the sake of God be done, and not to fear that it is a transgression. The disadvantage should not hinder the action.

And indeed, the Rosh in his commentary on the page writes this for the Hadiya, when he says:

A great mother transgresses for her sake as a commandment not for her sake – you will be punished by me.

The Rosh says that there is no comparison of two values to each other here, but rather a general claim that both of these are worthy actions, and should be done.

Now comes the evidence from the verse that compares Yael to mothers. In light of our words, there is no need to insist that we are talking about mitzvot not for the sake of mothers, but rather about mothers themselves (as the Maharik understood in Shoresh 67). Yael, who committed a sin for her sake, is completely righteous, like the four mothers. In the circumstances in which she acted, her action was exactly what she should have done, just like a real mitzvah (and certainly a mitzvah for her sake, which in circumstances that are not intended must be done for her sake).[10]

The conclusions that emerge from analyzing the course of the issue are the following:

1. The meaning of the term "offense for its own sake" is indeed an actual halachic offense, and not an action that expresses a normal halachic rejection (such as doing something that is not to be done, or a person who rejects Shabbat, etc.).

2. The conclusion of the G.M. is that in certain circumstances (such as those in which Yael, Tamar, or Lot's daughters were found, etc.) the act must be performed from the outset, even though it is defined as a halakhic offense. Furthermore: the one who does this is as righteous as the four mothers.

Fundamental difficulties

The term 'offense per se' as we have presented it so far raises serious difficulties. First, the question of boundaries arises: who can decide, how should one decide (according to what criteria), and under what circumstances, to commit an offense per se. But the more difficult and fundamental question is: even without regard to the problem of the decision criterion, how is such a concept even theoretically possible? How does the law itself legitimize an act that is a halakhic offense (=contrary to the law)? Does when an act receives legitimacy, does it not cease to be considered an offense? As mentioned, this seems like a real logical contradiction, and is probably why many commentators tend to interpret the issue in a simplistic manner.

Another aspect of the same question is: By what means should one decide on the commission of a crime for its own sake? After all, by halakhic means this act is a crime (there is no halakhic rule that permits it). In other words: Does the determination 'a major crime for its own sake' even belong to the halakhic sphere?

Torah and Halacha

From the latter considerations it emerges that the scope of the discussion is indeed not the halakhah, but a broader scope: the Torah. As we have seen, from the perspective of the halakhah there is indeed an act of transgression here, but from the perspective of the Torah, in a broader sense, this is a positive act. The person who worships God is supposed to act according to the instructions of the Torah, of which the halakhah is only a part. Therefore, there is a conflict here between the halakhic consideration and a more general Torah-value consideration.[11]

Let's give an example: An actor is offered a role in a cigarette commercial. In this role, he is supposed to smoke a cigarette, and the financial compensation for the filming is very high. The actor approaches his doctor friend and asks him whether he should accept the offer. The doctor replies: Medically - absolutely not. Smoking is harmful to health. Nevertheless, as a friend, I suggest that you accept this offer, for financial reasons (because of the financial compensation). The bottom line is that even if the doctor's recommendation were to accept the offer, it is still clear that from a medical point of view this step is wrong. The offer is based on the fact that non-medical considerations outweigh the medical consideration, which is minor in this case, but does not cancel it out.

In our case, the situation is similar. From a halakhic perspective, this step is forbidden, and thus it is also considered a conclusion. But there are extra-halakhic considerations that instruct us to carry it out anyway, and in extreme circumstances they override the halakhic considerations.

It should be noted that this proposal entails a conceptual innovation that is not simple. There is no innovation in claiming that the concept of 'Torah' is much broader than the concept of 'halakha'. However, it is generally accepted that the halakha contains the entire normative part of the Torah. Those parts of the Torah that are not included in the halakha are not binding norms, but recommendations, important lessons, historical or spiritual descriptions, and so on. It seems clear on the surface that in the event of a conflict, all of these are rejected in the face of the binding normative part, i.e.: the halakha. Our proposal here suggests that there are normative parts of the Torah that are not included in the halakha, and are not necessarily rejected in the face of it. This is a conceptual innovation. Although it may seem at first glance to be merely semantic, as we have seen (and will see below), it also has practical implications.

Therefore, a situation in which the discussion of a crime per se arises is one in which there is a conflict between the commands of halakhic law and extra-halakhic norms. As we saw above, the conclusion of the issue is that the practical instruction is to perform the act despite it being a crime. 'Practical instruction' here is not interpreted as a halakhic instruction, since from a halakhic point of view and halakhic tools it is a crime. The instruction here is a teaching of the Torah, not of the Halakhic law. And this solves the logical problem we posed above. There is no halakhic legitimacy here for a crime per se, but rather Torah legitimacy. The concept of 'crime per se' is a halakhic concept, but the legitimacy of 'crime per se' is found in a sphere external to Halakhic law.

And yet difficulties

We must ask ourselves why such instructions are not also included in the halakha? Isn't this just a semantic change, whereby we call parts of the halakha 'Torah'? There also remains the problem of the boundary and the criterion: how can one determine, and in what situations, whether a transgression should be committed per se or not?

The last question can be presented in a more general form: How can we decide the conflict that exists between Halacha and extra-Halakhic norms? What tools will we use, when Halacha itself is up for debate? Clearly, these cannot be Halachaic tools, since we are discussing an issue that considers the status of Halacha itself, and therefore it must be conducted using some objective tools (i.e. tools that exist outside the two systems under discussion: Halacha and Torah). As stated, using Halacha tools would trivially imply that an act of transgression per se is a forbidden act.

This is the type of problem called in analytical moral philosophy the 'incommensurability (=lack of a common measure) of values.'[12] Here we are exempt from needing it, since the two systems that are found in the two rays of the dilemma are not foreign systems: the Torah contains the Halacha, and therefore it is quite clear that in a situation of conflict between them it will have the upper hand.

As an example, let us take an intra-halakhic conflict: fiqun and Shabbat desecration. If the desecration of Shabbat and fiqun were values derived from a more fundamental principle, which for convenience we will call here ‘purity of soul’, then we could perhaps measure the value of keeping the Sabbath in terms of purity of soul, and then the value of fiqun (=the value of life) in these terms, and finally compare the two results in order to decide this conflict. However, if these are two values that are not derived from a more fundamental principle, what would be the common scale by which we could measure them? The problem is much more serious when it comes to a conflict between two value systems that are foreign to each other.[13]

But Piku'n and Shabbat belong to the same system, and precisely because of this, the decision between them is not called an 'offense for its own sake', but a regular mitzvah. The decision in favor of Piku'n is the halakhic teaching, and therefore it is not considered an 'offense for its own sake'.

If we recall how this intra-halakhic conflict is resolved, we will see this immediately. The consideration that appears in the Gemara in this regard is that if we desecrate one Shabbat for that person, it will allow him to keep many Shabbats.[14] In other words, we have found a common measure for both principles, and we measure both on the same scale. In this case, the scale is: the value of Shabbat (=how many Shabbats will be kept). The desecration of Shabbat is at a level of 1 (=one Shabbat will be observed), while the value of life on this scale is hundreds (=hundreds of Shabbats that that person will be able to keep in his life to come).

In our case too, because Halacha is part of the Torah, then there must be a common scale, and this scale is the values of the Torah. This scale can 'weigh' both sides of the coin and lead us to a decision. The conflict is supposed to be resolved by finding the value of the Halacha commandment and the opposing values on the Torah scale, and comparing them.

Between the theoretical problem and the practical problems

It should be noted that this argument solves the theoretical problem we raised above, how in the world can a conflict of 'offense for its own sake' be defined and decided. But from a practical point of view, 'the Torah' is a vague concept, and it is difficult to see how it would be possible to weigh two sides in a conflict of offense for its own sake in order to reach a decision. Clearly, the tools cannot be halakhic, but more general value tools. We will now move on to look at some approaches to offense for its own sake, and how they deal with these problems.

An existential commandment, a matter of authority

Rabbi Kook, in the Cohen Teshuvah Kamed case (D.H. '10 and May'), raises the possibility that this is something like an existential mitzvah, or a matter of authority. This view assumes that the conflict essentially cannot be resolved, and it remains a draw. This is a necessary consequence of the problem of incommensurability, which inevitably leads to an inability to resolve the conflict. In such a situation, both paths are possible, and therefore the one who takes the path of committing the offense is doing something legitimate.

It seems that such an approach does not fit the totality of cases of transgressions for the sake of the name. The praise that came to Yael does not seem like a reference to a neutral act. The same is true of the daughters of Lot (whose actions the Gemara in Nazir 23 refers to several times as a mitzvah). We have also seen that the problem of incommensurability does not appear in cases where one of the two conflicting systems is included in its group.

The role of intention

The comparison between a sin for its own sake and a mitzvah for its own sake raises the possibility of seeing the focus of the issue in the question of intention. Ostensibly, a mitzvah for its own sake is a good deed with bad intent, while a sin for its own sake is a good intention accompanied by a bad deed. The context of the issue there (starting from the mishna) also deals with the question of the relationship between intention and action. According to this proposal, the comparison that the Gemara draws to conclude between a sin for its own sake and a mitzvah for its own sake means that although a perfect mitzvah includes both action and intention, both intention alone and action alone are positive.[15]

Rabbi Haber (see ibid., chapter 4) cites several sources that view a transgression as a negative act with positive intent. Some of them go so far as to seemingly determine the relationship to the act solely based on the intent. That is, even if an act appears to be a transgression, if it is done for positive motives it will be considered a mitzvah.

One of the sources that usually interprets them in this way is Baal Ha-Iqiraim, who writes as follows (Hag. 3:29):

The general rule is that every action that a person does for the sake of Heaven earns them life in the world to come, and even if that action is considered bad, our rabbis, may God bless them, said in all your ways, and even to speak of a transgression, and they said that a transgression for its own sake is even greater than a mitzvah that is not for its own sake. And this barren son, may God bless him because he is necessary for the Torah of Moses, otherwise not all of Israel will earn life in the world to come through the Torah, except for one from a city or an individual in a generation.

But as Rabbi Haber noted, the author of the principles deals with actions that are not actual offenses. It should also be noted that even with regard to such actions, he does not say that everything is determined by intention, but rather that even if the action is bad and forbidden, a person has some reward for the good intention. It is also clear from the context of the chapter that this is his intention (he deals there with the question of how all Israel will be entitled to a share in the Hereafter, and not with the prohibition and permissibility of the action itself), well said.

If so, it seems that the author of the main points denies the act of the offense for its own sake in the sense defined above. He merely consoles the offender by saying that he will receive a reward for his good intention. As we noted, it is true that there is room to interpret the offense for its own sake as an intention without an act, but such an interpretation is very limited in the Gemara, as we saw above. The praise that is given to Yael and the daughters of Lot does not seem like a retrospective reference.

The Netziv method

The Netziv of Volozhin refers to the offense in several places in his writings. The main halachic source is in the Responsa Tamishiv Davar, Ch. 2, 9, where he writes the following:

And then there are two conditions: the first condition that he does not benefit from that offense at all, and as is the case with Gabi Yael, who was praised for committing an offense for its own sake and who is difficult and does not enjoy the offense, etc., but it is not permissible for her to commit an offense because of the Law of Israel, because if she had enjoyed this offense, she would not be praised at all, since it is forbidden to enjoy the offense for its own sake. The second condition that must be considered is whether this offense is worth the controversy or persecution regarding this mitzvah that he calculates will arise from this, and this is the words of the Sages who rule in their desires, meaning that they do not have any pleasure in what he does for its own sake, and later his account comes to the loss of a mitzvah that will come to him against his reward that he will receive from this mitzvah, and it may be that the loss that will come to him is greater than his reward, and the reward of an offense for its own sake is calculated against the loss that will come later,

The Netziv states here that a sin for its own sake can only be committed if the intention is positive. The evaluation of the act depends on the intention, and not on the results of the act alone. For example, if Yael, the wife of Heber the Kenite, had indeed intended her own pleasure, it would not have been a positive act, even if it had led to the killing of Sisera.[16] This is also the distinction we saw above between Lot's daughters and their father, who intended the sake of a mitzvah and he intended the sin.

However, when we examine the Netziv's language carefully, it appears that his intention is completely different. He writes:

If a woman were permitted to commit an offense because of the Jewish people, then if she benefited from this offense, she would not be praised at all, since it is forbidden to benefit from an offense for its own sake.

If so, she would have been permitted to commit the offense in any case, but if she had enjoyed it, the Scripture would not have praised her for it.[17]

What emerges from the Netziv's words is that a sin for its own sake does not depend at all on the intention of the act. The permission (and even the obligation) to do so is a product of the circumstances and does not depend on intentions. It is true that there is a prohibition to enjoy the act, and whoever enjoys it has committed a prohibition. But this is not a condition for the actual permission and the obligation to perform it. In this sense, the similarity that appears in the G.M. to a mitzvah for its own sake returns here. Even a mitzvah for its own sake must be done (by someone who cannot do it for its own sake), even though it is not a perfect act.

Even with Lot's daughters, it seems that there was room to interpret that everything depended on intention, but even there this is an incorrect interpretation. The Gemara itself says about them: "The ways of the Lord are straight; the righteous walk in them, and the wicked stumble in them," meaning that Lot, whose intentions were evil, is considered a wicked man, and his daughters, whose intentions were good, are considered righteous. But as stated there too, it seems that the matter does not depend on intention but on circumstances. Lot's daughters thought that the entire world was destroyed (as appears in the verse, and so Rashi wrote there, i.e., "and there is no one in the land"), and therefore they wanted to do the deed in order to continue human existence on earth. On the other hand, Lot knew from the angels that they had come to destroy only the cities of the square, and therefore he knew that there was no need for this deed. This is probably the reason why the Gemara understands that Lot intended to transgress (see Bgm. Benazir in So'ab), even though he was the rapist in the act and his daughters were the fornicators. Come to your senses, and if Lot's daughters enjoyed the act, would they have been forbidden to do it? And what about the continued existence of humanity? Here, it is quite clear that the circumstances dictate the permission, and not the intention and the pleasure.

Conclusions from the Netziv's remarks: Intent or purpose

The conclusion is that defining a crime as a crime for its own sake is not a function of the intention, but of the goal (and therefore also of the circumstances). A crime whose circumstances are extreme, and the value that is at stake is very great, can be considered a crime for its own sake, and then there is an obligation to do it even though there is no halakhic permission for it. The general consideration prevails over the halakhic consideration. The pleasure is a side question, and at most there is a prohibition to enjoy a crime for its own sake (which is the question of the Gemara in the Nazir issue cited above: "And it is a sin for its own sake").

This leads us to the second condition that the Netziv cites. The mitzvah for which the offense is committed must be of great value compared to the offense itself.[18] This is the characteristic of most cases that appear in halakhic literature in the context of an offense for its own sake. These are usually extreme cases, in which the positive value is enormous, and therefore there is a consideration that permits committing the offense. For example, a situation in which the spiritual life of a Jew, or of an entire community (and in the case of Lot's daughters: the existence of all humanity), is in danger, in the face of some specific offense that could save it.[19] This condition is what defines the conditions for the obligation to commit an offense for its own sake. As we saw above, the first condition is not a condition for obligation but a side prohibition (to enjoy an offense for its own sake).

If so, the Netziv truly understood the concept of 'offense for its own sake' in the way that we suggested as a conclusion from the analysis of the issue. This is an act that is not halachically permissible, but in very extreme circumstances we are nevertheless obligated to do it. Contrary to the above suggestions of Rav Kook (although in the end he also leaned towards the Netziv's position, that it is an obligation and not a matter of permission), it seems that we have a decision criterion, and this task falls on every person who finds himself in those circumstances (i.e. circumstances in which the second condition is met: that the gain is enormous compared to the loss in the offense), and not necessarily on the rabbinical court. For example, if a person sees that in certain circumstances the existence of all humanity is in danger, it seems that he must do as the daughters of Lot did.

It should be noted that this is a practical implication of the seemingly semantic change we made between 'halakhah' and 'Torah.' If we were to define a transgression per se as an action that is permitted as a result of a halakhic rejection, then in these circumstances there would be no permission to act in such a manner. We are not familiar with a halakhic permission to violate the prohibition of incest in order to save the existence of humanity. On the other hand, if it is possible to argue that Torah values (not halakhic) constitute a weight that can decide halakhic transgressions, then there is room for a position that obliges everyone to act in such a manner, even without introducing a halakhic permission mechanism.

The practical problem: 'It is time to do unto the Lord, they have broken your Torah'

Such a view raises the practical problem even more. How can such a question be decided in practice? Is the Torah given to everyone in his own hands? Can any person who sees a situation that seems problematic be able to transgress a severe Torah prohibition in order to change this situation? This is ostensibly the Shabbosian view that has so discouraged the commentators and caused them to interpret the issue in a more conservative manner.

Ostensibly, determining when we are in such a situation belongs to the "fifth part of the Shulchan Arba," in the well-known terminology of the author of the Chazo. This is an expression that indicates that the problem and its solutions lie outside the boundaries of formal halakhic law, and that it is placed at the disposal of the Jewish rabbinate. Rabbi Kook does indeed indicate a sin as an action according to the Jewish rabbinate or a prophet (see Rabbi Haber in the first approach, chapter 31).[20]

We find in the Sages a similar basis for the law of 'offense for its own sake', when they speak of 'a time to do to the Lord, they have violated your Torah'. In these situations, committing an offense for the sake of an important value (= observance of the Torah). The Gemara in Gittin 6 thus describes Rabbi's decision to write the Toshvefa (= the Mishnah), and the main issue is in the Mishnah Refa 9, Debarchot and in the Gem there.[21]

However, in fact, this is a different principle. Here we are dealing with a ruling of an authorized Jewish rabbinate, which can determine that a prohibition must be violated.[22] In contrast, we are dealing with an offense committed by an individual, who decides without halachic instruction to commit an offense in order to save an important value. Rabbi Kook, in his aforementioned responsa, comments that the ruling of a Jewish rabbinate regarding circumcision certainly cannot be considered an offense per se, since it is an integral part of the halachah itself.

If so, the phenomenon of a sin for its own sake deals specifically with the actions of the common man, in one-time circumstances. The action of a rabbi who removes something from the Torah (even forever, such as blowing the shofar in the name of God on Shabbat, and writing the Torah orally removes a prohibition in the Torah for all time) is part of the halakha itself. But in such cases, without the guidance of a rabbi or a prophet, we are ostensibly committed to the approach of "Bahdi rabbis darchemna, why do you have to do that" (see Blessings 10:1). What should we do, considering the place? Ostensibly, if the Torah prohibits us from doing the deed, then we must return the keys upward and act according to halakha, and not engage in considerations that go beyond halakha (as if to be 'wiser than God').

Criteria

Several criteria can be put forward that define and delimit the legitimacy of transgressions per se. First, it is clear that such acts must be one-time. There is no possibility of establishing a permanent practice as a transgression per se. The reason for this is that if there were indeed a permanent practice here, then the Torah itself would have had to define it in halacha, or, unfortunately, the Jewish Law would have had to fix it as a permanent regulation.

The implicit assumption here stems from the difficulty that accompanies the concept of ‘offense for its own sake’: If this is indeed the proper way to act, then why did the halakha itself not define it as a mitzvah? In other words: why are there acts that are required of us, and yet are not included in the halakha? Why are there normative parts of the Torah that remain outside the halakha? The answer is that offenses for its own sake are always one-time acts in individual circumstances. Such situations cannot fall within the established halakha. Although theoretically the Torah could instruct us that if there is a fear of the extinction of humanity, it is possible to commit the offense of incest, there are countless such circumstances, and not all of them can be included in the established halakha. Therefore, one-time instructions are not included in the halakha.[23]

Indeed, in the Responsa of Rabbi Azriel Hildesheimer, Chaim, Rabbi of C. Ritt (d. 1977), he writes that one must be satisfied with whether an act can be permitted under the law of a sin per se when it is committed regularly. According to our approach, it seems that a sin per se is essentially a one-time act. In a regular case, a permanent permit would make it part of the halacha. In a regular case, it is certainly up to the rabbinical court to determine this within the framework of the halacha.

A second limitation must be that the positive value in question actually appears clearly in the Torah. Reformist trends are generally fueled by attempts to introduce values that originate externally into the law. The permission to commit a crime for its own sake is based on the fact that the value for which the crime is committed is a value that the Torah itself instructs us about. This is the only reason why this value rejects (in the specific and extreme circumstances that have arisen) halakhic values (because they too draw their validity from the Torah, since the Halakhah is part of the Torah). In the case of Yael, there was a (albeit rather indirect) protection of the lives of all of Israel, and in the case of Lot's daughters, there was talk of the destruction of all of humanity (according to the image they had). Other values, however good and important they may be, such as equality, freedom, etc., would be difficult to base a permission to commit a crime for its own sake on, especially if it is a permanent form of behavior.

The third criterion is that that positive value must appear in very high intensities, immeasurably greater than the intensity of the severity of the offense (as the Netziv said above). We saw an example of this above in the case of the actor and the cigarette, where the economic value outweighed the health value for reasons of comparing intensities.

As we noted above, the fourth element, the prohibition of enjoyment from the act, is not a condition for permission to commit an offense per se, but rather a side prohibition, and therefore we do not list it here.

As stated, the basis for the permission to commit an offense for its own sake against the halacha is that the halacha simply does not deal with unique circumstances. In fact, the decision to commit an offense for its own sake is the will of the Torah for us, but this will is not expressed in the halacha, due to its limitations (not dealing with unique situations). The reform proposes changes that generally do not meet any of these three criteria.

Comparison to the legal reference: conscientious objection

Ostensibly, the concept of 'offense per se' is parallel to extra-systemic concepts that also exist in the legal world. For example, conscientious objection, or even civil disobedience. Both types of actions are also considered to be illegal, but in retrospect the law legitimizes those who carry them out for proper reasons and in an honest and trustworthy manner (and not with a criminal intent. It should be noted that here too, intention is an important parameter in assessing the act).

But it is important to note a fundamental difference between the cases: conscientious objection and civil disobedience are situations in which the system retroactively legitimizes an incorrect action, which even after its execution is considered an action that is unacceptable to the system. Here, there is recognition of the right of a particular person to act according to his principles even in a way that is not correct (in our opinion), but not real legitimacy. No one will praise the refuser, and vice versa: a condition for legitimacy is that the ideological offender will give judgment for his actions. No one will also tell others who do not think like him to do as he did. In contrast, a sin for its own sake is a different category: here the Torah states that this is the right action in the specific situation. This is not just a person's right to act incorrectly, but a recognition that the action is right even though it is in direct conflict with the law. The Torah even calls on a person who is in an exceptional situation to act in this way ("a sin for its own sake"). Therefore, this is a completely different category from conscientious objection.

Is Halacha perfect?

The novelty seems doubly great if we note that there is an admission here by the halakha that its provisions cannot cover all possible situations. In exceptional and extreme situations, a person can act in ways that contradict the halakha, since the halakha itself would tell him to act in this way if it could specifically address such situations. The admission of a religious-divine system of its limitations and inability to address all situations seems very surprising.[24]

To the best of our knowledge, in ordinary legal systems, although they are based on human beings who are prone to error, we do not find a parallel recognition of limitations. As we have seen, there is recognition of a person's rights to act in a manner that is contrary to the system's instructions and to bear the consequences and sanctions imposed on him, but no recognition from the outset of the system's limitations and the obligation to act in extreme situations in a manner that is contrary to the law. In such a situation, at most there will be a reduction in the punishment (he will receive a fine of 1 shekel), or even its cancellation, but no order to act against the law from the beginning. From inquiries I conducted with legal experts, it became clear to me that in modern legal systems there is no legal term at all equivalent to the meta-halakhic (or Torah) concept of 'offense per se'.[25]

[1] See also my article, 'Concerning a Transgression for Its Sake', Mida Tova, Parashat Vayra, 567 (hereinafter Mida Tova).

[2] See Rabbi Haber in Chapter 31.

[3] See also this in good measure.

[4] It is true that Noah's son is not warned about his daughter, and the commentators have already commented on this (see Pii Ramban on Atar, and more). It is true that from the reference to the act as an "offense for its own sake" it is clear that here there was an offense in some sense, otherwise it would not enter into the discussion. It is possible that Lot, who was careful to preserve his home and his marriage, was warned about his daughters, since with him there is a presumption of majority in the causes after the husband, unlike other Gentiles. Still, the matters require clarification.

[5] And so it was, as Messiah according to his fullness, the author of Mishnah Hilchot, Chaib 3 Kapad, d. e. 'Ibra Di'l'. And see in Rabbi Haber additional sources that assume this implicitly (see, for example, the words of Rashi cited in his note 33, and also see note 7 ibid.).

[6] This is the wording in the Frankfurt Code, in a number of early manuscripts (Rabbi Yonah and others), in Yaakov's commentary, and in additional sources.

[7] See on this in Rabbi Haber, note 12. And see also the responsa of Maharik Shoresh 167. 

[8] Sermons of Rabbi Ibn Shu'aib, Part 2, page Ta'ad, Vegshel Publishing.

[9] Several rishonim wrote about this, stating that the reference is to a specific act of motherhood that was indeed done in his name (see Mida Tova in describing the course of the rabbinic text, and in Rabbi Haber in note 8). However, Maharik Shoresh 167 interprets this as a simple comparison to the virtue of motherhood.  

[10] The first to interpret the comparison to the commandment not to anoint the mothers, apparently did so out of considerations of the textuality of the Gemara, since the Gemara's text compares this to the commandment not to anoint the mothers, and therefore one must also find a commandment not to anoint the mothers.

[11] For a clear description of such a concept, see the article by Shai A. Wesner, in Journey to Halacha, Amichai Berholz (ed.), Yedioth Ahronoth and Beit Morasha, Tel Aviv 2003. It was Wesner who also brought up the example of the smoking actor, which will be cited immediately.

[12] See this in more detail in Good Size.

[13] The decision in the above smoking example is very interesting in this context, as it indicates limitations in the incommensurability of values, etc.

[14] See Shabbat Kanna 2b, and Yoma here 2b.

[15] See collection of articles, by Rabbi Elchanan Wasserman, 'The Answer'.

[16] And in the Mishpat Cohen Si' Kamg dh"d writes, 'And here is a mother'.

[17] The Rosh also interprets the question "and he who is forbidden from transgressing" in this way, although for different reasons. This is also the meaning of Todah "and ask for his forgiveness", Ketubot 3 ab, and in Todah "and he who is forbidden from transgressing", Yevmot 10 ab. See also Todah "what is a murderer", Yoma 52 ab, where this can perhaps be understood as a condition for the actual permission.

[18] See also the Responsa Hilchot Ketanot, Ch. 1, 34, 5: “And to conclude with a conclusion.” And also the ruling of Cohen, Ch. 13, 5: “And behold, if,” which he brought from the Torah, “except in the Book of Revelation, Exodus 2:2.

[19] There are quite a few examples of this. See, for example, Yehuda Ya'ala, Ch. 2, AHAZ and Ch. 3, 100, where it says, "And what did he write about his greatness?" and so on from the root of 67, where it says, "And on."

[20] Although we have already noted that explaining Yael's act by virtue of the law of 'missionary duty' empties this approach of its content.

[21] See Rabbi Haber, Ref. B, and also in notes 12 and 33 ibid.

[22] This is indeed a transgression in the KJV. See Yevamot 7:1 and parallels.

[23] Compare the third root of the Rambam. Note that even with regard to the laws of the rabbis, the Gm. in Iruvin 21b says that they were not written in the Torah for quantitative reasons (because it is impossible to make endless books).

[24] This issue leads us to a discussion about deception. Is the gap in the law necessarily the product of a real gap, or is there also a possible situation of incompleteness of the law here (and whether in such cases there is an obligation to maintain the spirit of the law, or is it possible to deceive from the start), and so on.

[25] In the Al-Arad case, a consideration of natural law was raised, according to which although the law grants freedom and the right of expression to every citizen, in a place where the citizen calls for the destruction of the state it is not reasonable to grant him such freedom and right. Similarly, natural law can be a legal instrument that would legalize criminal acts in extreme situations, and de facto would operate like the mechanism of a crime per se. In any case, the very fact that there is not even an adequate legal term for such a situation is instructive.