Another Look at Declarative Halakhot (Column 351)

With God’s help

Disclaimer: This post was translated from Hebrew using AI (ChatGPT 5 Thinking), so there may be inaccuracies or nuances lost. If something seems unclear, please refer to the Hebrew original or contact us for clarification.

A few days ago I was asked about my statements on wiping out Amalek, “lower them and do not raise them,” and the like. Among other things, I said there that I assume these will not be reinstated in the future, and with respect to some of them I even doubted whether they were ever practiced in the past. It follows that there are halakhot that depend on the existence of certain circumstances, and there are halakhot that were never intended to be carried out in practice. In the course of my remarks I noted that, in my view, the latter category includes halakhot with declarative-educational aims, and therefore they were not meant to be implemented. In this column I wish to touch a bit more on this halakhic phenomenon (after the column went up, people pointed out to me that I already wrote about this in Column 293. And there is no study hall without a new insight).

The Sanhedrin Sugya: The Rebellious Son

In Mishna Sanhedrin 71a we find:

If his father wishes and his mother does not wish, or his father does not wish and his mother wishes, he does not become a wayward and rebellious son until they both wish. Rabbi Yehuda says: If his mother was not “fit” for his father, he does not become a wayward and rebellious son.

The Gemara there discusses the meaning of the requirement that his mother be “fit” for his father:

What is “not fit”? If you say [the parents are] in relationships prohibited on pain of karet or capital punishment by the court—after all, his father is his father and his mother is his mother. Rather, it means equal to his father. A baraita likewise teaches so: Rabbi Yehuda says, if his mother is not equal to his father in voice, in appearance, and in stature, he does not become a wayward and rebellious son. What is the reason? For Scripture says “he does not heed our voice”—since equality in voice is required, equality in appearance and stature is required as well.

Halakha requires that the father and mother be equal to one another in voice, appearance, and stature—a requirement that is, of course, almost impossible. It is no wonder that the Gemara immediately proceeds to claim that the rebellious son passage is theoretical law:

In accordance with whom is that which was taught: A wayward and rebellious son never was and never will be; and why was it written? Expound and receive reward. In accordance with whom? In accordance with Rabbi Yehuda. If you wish, say it is Rabbi Shimon, for it was taught: Rabbi Shimon said, Is it because this one ate a tartimar of meat and drank half a log of Italian wine that his father and mother bring him out to be stoned? Rather, it never was and never will be; and why was it written? Expound and receive reward. Rabbi Yonatan said: I saw him and sat upon his grave.

The baraita states that the rebellious son is purely theoretical and will never be implemented. The Gemara offers two possible explanations:

• It follows Rabbi Yehuda in the Mishna, who imposes impossible requirements for applying this law. On this explanation, this is not a prophetic statement but a consequence of the very low probability that these conditions will be met.
• It follows Rabbi Shimon, who holds that this law was not meant to be implemented. This can be understood in two ways: (1) In his view it is unreasonable to impose such a punishment for such a minor offense. (2) Even if that were reasonable in itself, it is not reasonable that parents would hand their son over to be executed for such acts. In any case, according to him it is clear that this halakha was never intended to be carried out, but only to be studied and rewarded. I note that the formulation “expound and receive reward” points to explanation (1), for according to (2) this is a valid law requiring practical implementation; thus there is no question why it was written. The fact that parents will not carry it out does not render the writing superfluous. One can counter that the rebellious son law depends on his parents bringing him to court, and therefore even if they choose not to bring him, they transgress no commandment. Still, it seems that on that view the question of why it is written should not arise, since it is a correct, binding law; hence “expound and receive reward” inclines toward interpretation (1).

The attribution to Rabbi Yehuda views this as the result of the Torah’s impossible demands, but in principle this halakha is intended for application: if those extreme conditions were met, we would be obligated to carry it out. By contrast, the attribution to Rabbi Shimon is far more radical, for he says that this law is not meant to be implemented even apart from Rabbi Yehuda’s extreme demands—simply because it is not a correct law, or because people will not carry it out.

Are these two opinions in dispute, or do they complement one another? One could argue there is no dispute: the reason the law is not meant to be implemented is because it is unreasonable (Rabbi Shimon, in the first possibility above), and the way to ensure it will not be implemented is to derive from the Torah impossible conditions (Rabbi Yehuda). On this reading, Rabbi Yehuda’s derashot serve a teleological purpose, but he too understands that this is not the plain sense of the verses. That is very puzzling, for if Rabbi Yehuda agrees this is not the verses’ intent, why the charade? Let him state candidly that this is a theoretical law and therefore not to be carried out. Why play make-believe as if the verse requires conditions that never crossed the Almighty’s mind and are not really in the verse? True, saying outright that we must not fulfill a divine command does not sound acceptable—but on this proposal that is essentially what Rabbi Shimon is doing. There is, of course, a possibility that these derashot truly arise from the verses via the methods of midrash (even if to us they seem very puzzling), i.e., that the Torah itself intended that the rebellious son law be applied only under those conditions, and Rabbi Shimon’s words merely explain the extremity of the demands by describing the Torah’s aim. Rabbi Shimon would then be saying that the reason the Torah imposes such extreme requirements is that it does not want us to implement this precept in practice.

Another possibility is that they indeed disagree. Rabbi Yehuda derives these rulings through the methods of derash, and thus, practically, a rebellious son “never was and never will be.” But in principle the law is not flawed; it seems reasonable and appropriate (and even if not, since the Torah decreed it, it must be fulfilled). Rabbi Shimon, however, claims we must not implement this law because it is not reasonable, and he does not base this on Rabbi Yehuda’s derashot. In his view there is no halakhic requirement that the parents be equal in voice, appearance, etc., and yet we have the authority to determine that a given law was not intended for practical implementation. The Yad Ramah ad loc. writes that these are indeed disputing views, explaining that according to Rabbi Yehuda the parents would bring him to court because they understand he is judged for his end (that he is destined to prey upon people).

The sugya concludes with Rabbi Yonatan saying that he himself saw a case of a rebellious son and even sat on his grave. In other words, in his view this law is actionable and was in fact implemented in the past. Moreover, it is likely that he holds there are no such extreme requirements regarding the parents, and therefore it could be implemented. With difficulty one could say that he agrees such requirements exist, but he saw a case in which, against all odds, they were met.

I would only note that it is unlikely Rabbi Yonatan literally saw a rebellious son stoned, since capital punishments were no longer practiced in his time (if they were ever practiced at all; see below). Note he says he saw him and also sat on his grave. Furthermore, if he testifies that he saw a rebellious son, how can other Tannaim dispute the law’s applicability?![1] It may be that he is merely expressing, in a literary way, a firm a priori assertion that there cannot be halakhot not intended for implementation. Therefore it is obvious to him that there was a rebellious son (or at least there could have been),[2] and for him it is as if he saw him and even sat on his grave.

The Sanhedrin Sugya: The Condemned City and the Leprous House

The Gemara there continues and brings another case:

In accordance with whom is that which was taught: A condemned (idolatrous) city never was and never will be; and why was it written? Expound and receive reward. In accordance with whom? In accordance with Rabbi Eliezer, as it was taught: Rabbi Eliezer says, any city that contains even a single mezuzah cannot become a condemned city. What is the reason? For Scripture says, “and you shall gather all its spoil into the midst of its square and burn with fire,” and since if there is a mezuzah it is impossible [to destroy], as it is written, “You shall not do so to the Lord your God.” Rabbi Yonatan said: I saw it and sat upon its ruins.

Here, only two interpretive options arise. The possibility that this follows Rabbi Shimon—that the punishment is unreasonable and therefore not to be implemented—is not raised; only an opinion paralleling Rabbi Yehuda’s appears. This perhaps slightly strengthens the reading that even above, in the rebellious son case, Rabbi Shimon’s concern is that the parents will not bring him to court, not that the punishment itself is unreasonable. Here such a possibility cannot be entertained, since this does not depend on the parents, and therefore such a view is not cited.

At the end of the sugya a third case is brought:

In accordance with whom is that which was taught: A leprous house never was and never will be; and why was it written? Expound and receive reward. In accordance with whom? In accordance with Rabbi Elazar son of Rabbi Shimon, as we learned in a Mishna: Rabbi Elazar son of Rabbi Shimon says: A house is never impure until [the lesion] is seen like two grisin on two stones on two walls in a corner, its length as two grisin and its width as one gris. What is his reasoning? It is written “wall” (kir) and it is written “walls” (kirat); which wall is like walls? You must say: a corner.

Here only one possibility appears: it is unlikely that the conditions will ever be met. Apparently here we cannot assume that the punishment is unreasonable, since we are speaking of demolishing a house and not executing people, and besides, demolition is not a punishment at all.

Summary of the Sugya

We saw three halakhot and three approaches to them: With the rebellious son, there is the possibility that the punishment is unreasonable and therefore not to be implemented; the possibility that the requirements for application are so extreme that probabilistically they will not be met; and the view that the punishment is applicable and even occurred. With the condemned city we saw the latter two possibilities. With the leprous house only the second possibility exists.

Note that these are three halakhot in which the Torah mandates very extreme measures (demolishing a person’s house is also very extreme), and therefore one can ask whether the intention is that they be realized in practice. However, the a priori assessment that the measure is unreasonable, from which one concludes it is not to be implemented, appears only in the rebellious son (per Rabbi Shimon), and even there it is not clear. It may be that Rabbi Shimon merely assesses that the parents will not carry it out, and not that the punishment is unreasonable.

Why Were These Halakhot Written?

The obvious question is why the Torah writes these passages at all. If indeed they will not be realized in practice—whether like Rabbi Shimon or like Rabbi Yehuda—why write them? The Gemara itself addresses this and explains: “Expound and receive reward.” Above I noted that this wording points to option (1) in Rabbi Shimon: he holds the law is unworthy and therefore not meant to be implemented.

But this is still puzzling for several reasons. First, are we lacking topics with practical application to study and be rewarded for? Second, why is there value in studying and being rewarded for a sugya with implausible, irrational rulings? What can be learned from them? That, of course, depends on the explanations we proposed for Rabbi Shimon. At least according to the explanation that the punishment is unreasonable and therefore not to be implemented, it is not clear why the Torah would write a passage that prescribes an unreasonable measure. Perhaps that in itself shows that this is not the correct explanation of Rabbi Shimon; rather, he means that in practice parents will not bring the child to judgment, not that the punishment is unreasonable.

In Torat Chaim on this sugya, the author struggles with this:

“And why was it written? Expound and receive reward.” At first glance this is astounding: since the purpose of Talmud Torah is that it leads to action, what benefit is there in learning something that has no practical application? This is no question, for there is no [thorn]* in the Torah and no commandment without a secret in the Essence of the Blessed One, as it is said, “God understood its way, and He knew its place”—“its place” means its foundation and root in His very Essence. And whoever engages in Torah, even if he does not perform [its commandments], is engaging in His holy honor and cleaves his intellect to the Blessed One. And this is what is said in Perek Rabbi Akiva: When Moses ascended on high, the ministering angels said, ‘Master of the Universe, a treasure hidden from the six days of Creation You seek to give to flesh and blood? Set Your splendor upon the heavens!’ Moses answered them: ‘What is written in it? “Remember the Sabbath day”—do you do work? “You shall not bear [God’s name in vain]”—do you have commerce among you?’ etc. And in Midrash Shocher Tov he also mentioned zavim and metzorayim, nidah and yoledet. And it is said there that when Israel made the Golden Calf, the ministering angels rejoiced and said: ‘Now the Torah will return to us.’ At first glance, how could the angels think this? Did they not know they are not subject to the performance of mitzvot? It seems as we explained: there are two aspects in Torah—action and hearing (i.e., apprehending through it God’s honor and holiness). It entered the angels’ minds that “hearing” alone suffices, and it would be preferable to the Blessed One to give it to them, since they are spiritual and have greater power to apprehend His honor through it than Israel, who are human. He answered them: ‘Do you have among you zavim and metzorayim…?’—that certainly both are preferable. And so it appears in Midrash Rabbah on Esther: when Israel enjoyed Ahasuerus’s feast, Satan stood and accused, saying before Him: ‘Until when will You cleave to this nation? Destroy them from the world!’ He said to him: ‘And what will become of the Torah?’ He said to Him: ‘Master of the Universe, be satisfied with the upper beings,’ and the Holy One, blessed be He, also inclined to wipe out Israel… Since it does not say “give it to the upper beings” but “be satisfied with the upper beings,” it implies thus: From the outset You did not give the Torah to the upper beings because You would not be satisfied with them, since they have only “hearing” without “action.” Now that Israel are not fulfilling it, be satisfied with the upper beings with “hearing” alone.”[3]

He explains that from every passage in the Torah one can learn various spiritual lessons, irrespective of the halakhot it addresses; this applies to these three passages as well. Still, it must be understood why we learn spiritual lessons from a passage whose halakhic plain sense is incorrect and unreasonable. It is generally assumed that every passage is to be interpreted on the level of peshat and on the level of sod, and on both levels it yields correct meanings we must learn from.

R. Yisrael Salanter, in his essay “Hok u-Mishpat,” asks this question too. His claim is that these passages were written to teach the principle of “expound and receive reward,” namely, that study is not only in order to know what to do but has intrinsic value. This then serves as a prototype for all Torah study (not only for these passages). One can still ask: why write an incorrect or unreasonable passage in order to teach this lesson? Let a correct, yet non-applicable, lesson be written. On his view it is more plausible that the passage is correct but, for some reason, not meant for practical implementation. Somewhat like “the law is [technically] X but we do not teach/practice so”—only more extreme: the law is X, and we teach to act otherwise (i.e., not only do we not publicize it; even one who knows it is not meant to carry it out).

This can be phrased slightly differently. It could be that these verses are declarative-educational: in principle, it would be appropriate to do so, but for various reasons it is not correct to implement these directives in the practical world. The verses were written for an educational-declarative purpose: to teach us what ought to be done and how, according to the Torah, one should relate to such situations and actions. The fact that we do not do so in practice is for collateral reasons. Many explain in this spirit the category of “the law is X but we do not teach so,” such as “one who has relations with an Aramean woman—zealots may strike him.” This is indeed the right thing to do, but practically it can be harmful and breed illegitimate zealotry; therefore the Torah prefers not to instruct it (though in that case it is meant to be carried out by one who truly understands it is appropriate, like Pinhas).

Note that this proposal combines the two directions raised above (Rabbi Yehuda and Rabbi Shimon). The step mandated in these three situations is, in principle, proper and correct—even according to Rabbi Shimon. Therefore it is fitting to legislate so, for by doing so we declare that such acts deserve such a punishment and that such a step is proper in such cases. However, Rabbi Shimon holds that, for some reason, it is not correct to implement it as is. For example, a rebellious son destined to prey upon the public certainly deserves to be stoned, but there are reasons not to implement this in practice, and therefore it will not occur. Courts will not sentence a rebellious son to death. Why, then, did the Torah write the passage? To teach children—and us—what the value of such actions is and what would be appropriate to do in response. Perhaps the very writing of this law will prevent the rebellious son phenomenon, and thus obviate its practical implementation. That is the declarative-educational achievement for which it was written.[4]

As for the reason not to implement it in practice, several suggestions can be made. For example, that this is a purely educational-deterrent statement and not a practical command. Underlying this is the assumption that the son’s guilt and the offense itself are not all that severe, and thus do not justify such a harsh punishment. True, he may in the future come to serious acts, and then perhaps the punishment would be justified (as with a pursuer or a burglar tunneling in, who are judged by their end), but at this stage the “punishment” serves only prevention and not retribution. One could therefore say it is an unjustified punishment for this act, and even considerations of future prevention do not necessarily justify disproportionate punishment. A similar consideration appears in Derashot ha-Ran, Derush 11, regarding hatra’ah (forewarning):

We will further explain: setting aside one side of the issue, we learned in Perek “Hayu Bodkin” (Sanhedrin 40b): “The Sages taught: ‘Do you recognize him?’… ‘Did you warn him?’ ‘Did he accept the warning?’ ‘He permitted himself to death?’ ‘[Did he] kill within the span of speaking?’ etc.” There is no doubt that all this is proper from the standpoint of just judgment, for why should a person be put to death unless he knew he was bringing himself into a matter liable to death and transgressed it? Hence he must accept forewarning, and all the other matters taught there—that is true, essential just judgment entrusted to judges. But if the transgressor is punished only in this way, the political order will utterly collapse: murderers will proliferate and will not fear punishment. Therefore the Blessed One commanded, for the sake of the world’s settlement, the appointment of a king, as it is written in this section (Deut. 17:14–15): “When you come into the land… you shall set, set over you a king,” which is a mitzva that we were commanded to appoint a king, as received by our Sages (Sanhedrin 20b). And the king can judge even without forewarning, as he sees is necessary for the political collective.

The Ran explains that in essence it would be right to punish a deliberate sinner even without forewarning, since we must deter criminals. He argues that if we insist on all the forewarning rules (the witnesses warn him, he accepts the warning and says “Yes, and on that condition I do it”—see Tosefta Sanhedrin, beginning of ch. 11), no one will ever be punished, and deterrence will vanish. Therefore general law (“the law of the king”) requires punishing even without forewarning to deter, although without forewarning the criminal’s guilt is not fully complete (in itself perhaps he does not deserve punishment). But Torah law, unlike the king’s law, holds that if he himself does not deserve punishment, public-deterrence considerations alone do not justify punishing him (it is not “just judgment,” in his words). And that is exactly my point.

In this connection it is worth noting the famous responsum of the Rashba (IV, no. 413), where he exempts a community from all of Torah law’s judicial rules (evidence, procedure, punishments) when they judge for the city’s welfare. There they may act according to rules of evidence and procedure as seems fit (apparently accepting one witness, self-incrimination, women’s testimony, etc.). One sees that beyond the rules the Torah set, there is a need to judge more flexibly for the sake of the polity and the public. Alternatively, one sees that judging strictly by the Torah will not achieve those aims.

“An Eye for an Eye”

This explanation naturally brings us to the “eye for an eye” passage. There too the Sages expound that we do not remove the offender’s eye but impose monetary liability. Again the question arises: why does the Torah not state this explicitly? Why write an incorrect formulation and leave it to the midrashic tradition to reinterpret?

Many explained that the Torah is telling us that, ideally, one should remove the eye, but for various reasons we do not do so in practice. The plain sense indicates what ought to be done, while the derash tells us what is done in practice. Here we have an example of a Torah directive not meant for implementation, although the assumption is that it is in fact a fitting punishment.

But there the Sages interpreted the verse and removed it from its plain sense. Thus it is not an ideal example for our topic, which is whether one may determine, without such midrashic backing, that a Torah directive was not intended for practical implementation. Rabbi Shimon on the rebellious son is of course a better example.

The Death Penalty

Aharon Shemesh, of blessed memory, in his book on biblical punishments, argued that capital punishments were never actually practiced. He claims the entire system was conceptualized and developed in a period when capital punishment had already been abolished. I have not read the book, and at first glance this seems puzzling to me, since the Sages have several descriptions implying such punishments were practiced (otherwise what does it mean they were “abolished”? That implies there was a period in which they did occur), and they ceased only when murderers multiplied, etc. For our purposes, I merely wish to present this view as another example of our principle.

In this context it is apt to cite the Mishna at the end of the first chapter of Makkot (7a):

A Sanhedrin that executes once in seven years is called destructive. Rabbi Elazar ben Azaria says: Once in seventy years. Rabbi Tarfon and Rabbi Akiva say: Were we on the Sanhedrin, no person would ever be executed. Rabban Shimon ben Gamliel says: They too would increase bloodshed in Israel.

The trend in the first part of the Mishna is to minimize capital punishment, but that does not turn it into a purely theoretical institution. Still, there seems to be an undertone of the principle I suggest here: reading the Torah simply, one should punish anyone liable to death rather than contrive to circumvent the Torah’s directive. There seems to be a subtext that it is not appropriate to carry out such punishments in practice, and therefore we minimize them as much as possible.

Rabbi Akiva and Rabbi Tarfon, in the latter clause of the Mishna, go a step further and claim that capital punishment is not meant for implementation at all. The Gemara explains they would interrogate the witnesses with questions that cannot be answered (was there a puncture where the sword was? did you see like a paintbrush in a tube? etc.), i.e., they propose to use extreme interpretive and procedural devices to circumvent the Torah’s prescribed punishment. This is very similar to what we saw with Rabbi Shimon: he views a Torah command as not meant for practical implementation. Admittedly, here they proceed more like Rabbi Yehuda, using (extreme) interpretive moves to avoid death sentences rather than simply declaring that the command is not to be carried out.

It is interesting that Rabban Shimon ben Gamliel’s argument against them is not substantive. It may be that he agrees in principle that it is not appropriate to execute for such offenses, but he argues that such a policy will increase bloodshed—i.e., there will be no deterrence. Precisely as we saw in the Ran regarding forewarning cited above.[5]

Disqualified Witnesses[6]

As is known, the disqualification of relatives as witnesses does not stem from a concern about reliability; it is a personal disqualification by scriptural decree. This is explicit in the Gemara and codified in the Rambam and Shulchan Arukh. Students usually accept this with equanimity, and in my estimation that is because even if we disqualify relatives’ testimony nothing dramatic happens: at most a criminal will go unpunished (or we will imprison him rather than execute him). But imagine the following case: two witnesses testify that Reuven murdered Shimon. Two brothers then come and render the first pair false witnesses (hazama). What should we do? Seemingly, the brothers’ testimony is invalid; therefore the first testimony remains valid and we must execute Reuven as a murderer. On the other hand, we saw that relatives’ testimony is not unreliable per se; factually the first witnesses lied and Reuven did not murder Shimon. Can it be that the court would execute Reuven in such a case?

I have already written that I have no doubt it would not. In such a case the court must acquit Reuven, or at least recuse itself. Admittedly, it is quite clear we would not apply the law of hazama to the first witnesses when the renderers are relatives. If so, we see that the disqualification of relatives is not always meant to be implemented.

Now consider the opposite direction. At the beginning of Sanhedrin 24 the Rambam rules that in civil cases the requirement of two witnesses is not essential; a court may rule on the basis of other evidence, provided the court is convinced of the truth (unlike criminal punishment, where the demand for witnesses is absolute; see the beginning of ch. 20 there).[7] Now consider the case where two brothers testify that Reuven stole from Shimon. They are indeed disqualified witnesses—but not due to unreliability. Therefore, when the judges wish to know whether Reuven in fact stole, the answer is yes. True, they may not rely on relatives as witnesses, but they can use their testimony as an umdena (assessment), for factually the court knows Reuven stole. I have seen several later authorities write that in such a case we do not extract the money from Reuven, because there is a scriptural decree not to rely on relatives’ testimony. In my view, we certainly should extract the money on the basis of the umdena. And what of the disqualification of relatives in civil cases? That is a theoretical law not meant for practical implementation.[8]

One Who Stuck a Loaf to the Oven

In Shabbat 4a the Gemara discusses one who stuck a loaf to the oven and it is now baking. When the baking finishes he will have violated the melakha of cooking/baking and be liable to stoning. If he removes it before it bakes he will avoid stoning, but the removal itself is rabbinically prohibited. The Gemara asks whether one may remove the loaf in violation of a rabbinic prohibition in order to avoid liability for stoning.

The Gemara’s simple assumption is that if he leaves the loaf to bake and obeys the prohibition against removing it, he will indeed be liable to stoning—even though his refraining from removal was due to obedience to a rabbinic prohibition. Indeed, Rishonim and Aharonim grapple with why this is not considered coercion (ones) and offer answers. Yet Tosafot (s.v. “kodem”) ask there:

“If you say, what is the question whether they permitted removing it? Obviously he will not listen to us if we forbid it.”

Tosafot assume that even if it were prohibited, a reasonable person would not obey the Sages in such a case and would remove the loaf even if we forbade it; he would prefer to transgress a rabbinic prohibition to save his life.[9] But Tosafot continue and claim that if this is the situation, then it cannot be genuinely prohibited. Their premise is that there cannot be a prohibition that is not meant for practical compliance.

For this reason Tosafot must resolve:

“Riva answered that if they did not permit it, he would not be liable to stoning, since his refraining from removal is due to our forbidding him.”

That is, in truth there would be no liability to stoning because he refrains only due to the prohibition (it is unclear whether this is an exemption of coercion or some other exemption). In such a case there is a chance he will listen to us, and therefore there is room to say that such a prohibition exists.

But in Rashi there (3b) it appears that even if there were a prohibition to remove the loaf, one who refrains would still be liable to stoning. One can deflect this reading of Rashi, but I cite this view—which certainly exists among Rishonim and Aharonim in the sugya—as another example of our point: on that view it is quite possible for there to be a prohibition that is not meant for practical compliance. We must remember this is a rabbinic prohibition: the Sages could have refrained from forbidding removal if they knew the public would not obey it (in such a case it would seem that even if they did forbid it, the decree would be null, since the public cannot uphold it). Why, then, did they forbid it? I propose that this prohibition is declarative-educational. Perhaps Rashi holds the prohibition is meant to educate the public and show them how severe the Sabbath is—that even a rabbinic prohibition is not overridden to save oneself. In practice people will transgress it, but perhaps this declarative statement will itself prevent the need, because people will understand from the outset and not stick the loaf. On my proposal, this halakha serves to deter and educate but is not meant to be enforced in practice. Moreover, on this proposal it may be that even if we forbade removal, one who removed would not be punished for a rabbinic violation, because this is not a law meant for practical implementation.

A similar question arose for me when learning the chapter “Kol Kitvei ha-Kodesh” in Shabbat. The Gemara deals there with the rabbinic prohibition against rescuing one’s possessions from a burning house on Shabbat, lest under pressure one forget it is Shabbat and come to extinguish. Note that in such a case even extinguishing the fire directly is only rabbinically prohibited (extinguishing not for charcoal production is a melakha she-eina tzricha le-gufa). Therefore, a fortiori we should permit even extinguishing itself, and all the more so permit rescue despite the fear he might come to extinguish. Yet the Sages forbid this. Now ask yourself: is there anyone who will uphold such a prohibition? Your entire property is going up in flames, and you are to stand by and neither extinguish nor save—save for food for three meals and holy books and appurtenances. It seems to me that hardly any reasonable person would comply with such a halakhic directive. People will prefer to transgress a rabbinic prohibition and live the rest of their lives normally. Moreover, what they save will enable them to perform many Torah commandments, grant them mental and physical health—all at the price of violating a light rabbinic decree made only lest one violate another rabbinic prohibition. It therefore seems that this too is a declarative-educational halakha not meant for practical compliance. We want to educate people about the gravity and sanctity of Shabbat, but we do not actually expect them to comply.[10]

Incidentally, in practice many decisors apply very liberally the Rema’s statement that nowadays the prohibition does not apply because of danger to neighbors’ lives, and pikuach nefesh overrides all prohibitions, of course. One can stretch this line of concern endlessly (there is always some risk the fire will spread; perhaps neighbors are in their apartments unaware of the blaze, etc.). Perhaps even the Rema himself wrote this like Rabbi Yehuda—i.e., as a reading intended to enable one to “evade” and rescue and even extinguish. But among the decisors who follow him, my impression is very clear that this is indeed their intent. For my part, I prefer intellectual honesty: simply say this is a halakha not meant for implementation, rather than employ far-fetched dispensations (i.e., in situations where there is no genuine danger to life).

Reconciling the Sugyot

Tosafot in Shabbat speak of a rabbinic prohibition (removing the loaf) and say that if it is not meant for compliance it is not prohibited. How does this fit with Sanhedrin, where we saw that the Torah may include commandments not meant for practical implementation? One might attempt to distinguish between prohibitions (lo ta’aseh) and positive commands (mitsvot ‘aseh): perhaps prohibitions cannot be such, while positive commands (like demolishing a leprous house, burning a condemned city, and executing the rebellious son) can be declarative. But this distinction does not seem compelling.

It is more plausible that Tosafot understand that there we are dealing with Torah-level commandments, and the Torah can include commands not meant for practical implementation in order to teach a theoretical lesson. But rabbinic decrees are meant for practice; if they do not achieve the practical aim, the Sages would not legislate them. In other words, Tosafot do not claim that a norm not meant for practical compliance is no norm at all; they only claim that, in such a case, the Sages would not legislate it. On this basis, in principle, if they nonetheless legislated it, Tosafot might agree that it would possess binding force and one who violates it has transgressed.

Back to the Opening Examples

Returning now to the examples with which I opened: whether according to Rashi or according to Tosafot, those are declarative-educational directives not meant for practical implementation, since they are Torah-level commands and not rabbinic decrees.

By way of a postscript I add that, of course, there are cases and directives that at some stage were meant for practical implementation, but as circumstances change one can reconsider their practical application. In a society with different culture and values, there are directives we ought not to implement. The rationales presented are usually “we lack coercive power,” “there is no one capable of rebuking properly,” “appearance’s sake,” “ways of peace,” “desecration of God’s name,” “its ways are ways of pleasantness,” and the like—but I sense that not infrequently behind them stands a substantive view that nowadays these should not be implemented. That is: the law is X, and we instruct not to act accordingly (and not merely “the law is X and we do not teach it”).

[1] It is unlikely they are disputing the earlier court that carried it out.

[2] It need not have occurred in fact. In principle, there could well have been no child who qualified as a rebellious son. But in his view the possibility must exist, for that is the law’s essence.

[3] His words also resolve a difficulty in the midrash he cites: what did the angels think when they sought to keep the Torah for themselves? Moses’s answer is trivial: they have no parents, they do not work and have no need for Sabbath rest, there is no murder or theft among them, etc. So what did they do with the Torah before it descended, and what did they want to do with it were it to remain? It follows that even in the halakhic parts of the Torah there are spiritual faces relevant also to angels, and the halakhic implementation is but the worldly application of those spiritual principles. I discussed this at length in my lecture series “What Is Torah,” especially lecture 9.

[4] I believe I once wrote that the punishments of Gehinnom appear to me to be a similar phenomenon. After a person dies, there is no utility to a punishment his soul would receive. He will not return here to implement anything, and those left here do not know whether he was punished. It is therefore quite plausible that there is a declaration of punishment in Gehinnom, but the Holy One will not actually execute it. It is a declaration meant to achieve deterrence and educational results, but there is no need—and no value—in carrying it out.

[5] I have already explained elsewhere that the difference likely relates to their roles. R. Akiva and R. Tarfon were not on the Sanhedrin, and thus bore no leadership responsibility for public order; they could therefore indulge a purist application of halakha. But Rabban Gamliel was the head of the Sanhedrin and, as such, had to ensure deterrence and prevent murder. Therefore he does not accept their proposal, even if he perhaps agrees in principle. Using the Ran’s distinction, one can say that Rabban Gamliel adopts here the king’s policy, while R. Akiva and R. Tarfon articulate Torah’s pure justice. In Column 164 (and elsewhere) I explained that in that period the Nasi of the Sanhedrin also functioned as king.

[6] On this matter, see my essay “What Is a Scriptural Decree?” and the Migo booklet here on the site.

[7] See there that this rule is no longer practiced today, at least not simply. Its source is in the Rif; this is not the place to elaborate.

[8] Perhaps it could be applied where the court is not truly convinced—i.e., it has doubts about the witnesses’ credibility apart from their being relatives. But in such a case the disqualification is not due to their kinship. For any two witnesses about whose credibility the court has doubts, I recuse myself from the case (this is what halakha calls a “suspect case,” din merumeh).

[9] One could also ask about the force of such a rabbinic prohibition, for pikuach nefesh overrides all prohibitions of the Torah. This also raises the question of “coercion on the final day,” whether such a case is considered coercion, and more. The sugya has many fundamental aspects that I cannot address here.

[10] Seemingly, this Gemara challenges Tosafot’s position cited above: Tosafot said that a (rabbinic?) prohibition not meant for compliance is not prohibited, whereas here we see it is. With difficulty one could say that, if the price is property and not life, reasonable people will comply, or that the proportion of people who will comply justifies imposing the prohibition.