Are 'transgressor' and 'wicked person' synonyms?

With God's help

Be'er – 2013

For the Torah portion of Matot

At the beginning of the Torah portion of Matot, the Torah deals with the laws of vows. When a woman makes a vow, her husband may annul it only on the day he hears of it, and then her vow is nullified. But if he does not annul it on that day, then even if he annuls the vow afterward, the vow remains in force.

Now, Rashi on verse 6 writes:

"And the Lord will forgive her" – What is the verse speaking about? About a woman who vowed to be a nazirite, and her husband heard and annulled it, but she did not know, and she violates her vow by drinking wine and becoming impure through the dead. This is the one who requires forgiveness, even though it was annulled. And if those whose vows were annulled require forgiveness, then all the more so those whose vows were not annulled.

Rashi is speaking of a situation in which a woman made a vow and her husband annulled it on the day he heard of it, but did not tell her. She violated the vow deliberately, with the intention of committing a transgression, but in practice she failed and did not actually commit one (since the vow had been annulled). Such a woman requires atonement and forgiveness, even though, ostensibly, she committed no transgression at all. The atonement is for the very bad intention itself. Ostensibly, the conclusion that emerges from here is that the essence of the transgression is the bad intention, and the act is not necessary in order for a person to be considered a transgressor.

In verse 16 the Torah deals with a case in which the husband annulled her vow after the day he heard it, that is, an annulment that is not valid. What happens if the woman does not know that the annulment is invalid and therefore, by mistake, permits herself to do the act (she thinks it is permitted), and thereby violates the vow? Here Rashi writes about this:

"And he shall bear her iniquity" – He takes her place. From here we learn that one who causes his fellow to stumble takes his place regarding all punishments.

This is the opposite case from the previous one. Above there was culpable intent but no act of transgression, whereas here there is an act of transgression but no culpable intent. From Rashi's words it emerges that in such a case the woman bears no guilt at all, and the husband, who caused her to stumble, is the one who takes her place regarding punishment. If so, ostensibly, once again we see that intention, not the act, is primary.

The source of Rashi's words is found in Babylonian Talmud, Nazir 23a:

The Sages taught: "Her husband annulled them, and the Lord will forgive her" (Numbers 30) – the verse speaks of a woman whose husband annulled it for her and she did not know, and therefore she requires atonement and forgiveness. And when Rabbi Akiva would reach this verse, he would weep: If one intended to pick up pork and what came up in his hand was lamb, he still requires atonement and forgiveness; then one who intended to pick up pork and what came up in his hand was pork – all the more so! Similarly you may say: "Though he did not know it, yet he is guilty and shall bear his iniquity" (Leviticus 5) – if one intended to pick up lamb and what came up in his hand was pork, for example, a piece that was doubtful whether it was permitted fat or forbidden fat, Scripture says, "and shall bear his iniquity"; then one who intended to pick up pork and what came up in his hand was pork – all the more so! Isi ben Yehuda says: "Though he did not know it, yet he is guilty and shall bear his iniquity" – if one intended to pick up lamb and what came up in his hand was pork, for example, two pieces, one of forbidden fat and one of permitted fat – "and shall bear his iniquity"; then one who intended to pick up pork and what came up in his hand was pork – all the more so! Over this matter the sorrowful should grieve.

Two typical cases are cited here: he intended to eat pork but ended up with lamb, a case that parallels the first situation in Rashi here (intention without act). Then there is discussion of one who intended to eat lamb and ended up with pork—which parallels the second case in Rashi (act without intention). The second case is what we usually call an inadvertent transgression.

Is intention rather than the act really primary in the Torah? Do we really punish a person for bad intentions? The accepted rule of Jewish law is that there is no punishment whatsoever for intentions. Punishment is only for acts of transgression actually carried out. When there is no intention, that serves as a mitigating factor with respect to punishment (instead of punishment there is a sacrifice), but certainly it is the act that one is punished for. A transgression is the doing of an act, not the intention to do an act. When there is no act of transgression, however evil the intention may be, it constitutes at most grounds for punishment at the hand of Heaven, but certainly not as something that warrants punishment by a human court.

But on further reflection, reason actually suggests that the picture described in Rashi here is the more correct one. Why should it matter whether the person succeeded in carrying out his scheme or not? If some murderer aims a weapon and pulls the trigger, but the weapon malfunctions and his attempted murder fails, is he any less wicked? Does he deserve a lesser punishment? Ostensibly, attempted murder is complete wickedness, just like a murder that succeeds. The fact that the murderer is a bungler or simply unlucky does not diminish his wickedness in the least.

And indeed, if our conception of punishment were based on the desire to requite wickedness, we really would expect punishment to be imposed for intentions rather than acts. If an act is required in order to punish, that is a sign that this is not the conception of punishment in Jewish law. It is interesting to note that in most legal systems an attempted offense is less severe than the actual commission of the offense. Attempted murder carries a lighter punishment than a murder that succeeded. Why? It seems that embedded here is a conception that sees punishment not as retribution for wickedness, but as a kind of purging and cleansing of the filth caused by the sin. Therefore the sin must actually be carried out, since if nobody was murdered there is no filth to clean. In ordinary legal systems there is punishment (albeit lighter) for attempted murder, but in Jewish law there is no punishment at all for attempts. That is, Jewish law espouses a pure conception of punishment as cleansing and purification, not retribution.

True, if the act was done but there was no intention (it was done inadvertently), that affects the way we view the person, and of course also the punishment. One who acted inadvertently is not punished, even though the transgressive act was performed. The reason is that the duty to cleanse and purify that stain does not fall upon him, since he is not guilty. If so, the act is a necessary but not sufficient condition for imposing punishment. In addition, intention is also required. But intention without an act, according to Jewish law, obligates nothing at all, unlike other legal systems.

So what, according to Jewish law, is the status of someone who had the intention but did not perform the act? As stated, this is a wicked bungler who fails to carry out his scheme, like the one who intended to eat pork and ended up with lamb. Such a person is thoroughly wicked, as we saw above, but he is a wicked person who did not commit a transgression. Therefore no punishment is imposed on him, but he does require forgiveness and atonement, and that lies in Heaven's hands. There is no transgression here, since no act was done, but his evil intention makes him a bad person in the moral and spiritual sense, and as such he requires atonement.

The conclusion of our discussion is that punishment comes only for acts. Without commission of the transgression there is no punishment. True, the act is not a sufficient condition for punishment, but it is a necessary one. In order for us actually to punish him, intention is also required, and without it he is an inadvertent transgressor who, at most, is obligated to bring a sacrifice in order to obtain atonement for himself (but not to cleanse the filth of the sin, because that was not created). But our moral evaluation of the person himself really depends solely on intentions, as we have seen that simple reason suggests. It seems that this is what Rashi is speaking about in our Torah portion. There is no contradiction here to the conception of Jewish law that we described, which sees the act as the sole ground for punishment.

A transgressor and a wicked person are not synonymous terms. There can be a transgressor who is not wicked (an inadvertent transgressor: one who thought he was eating lamb and ended up with pork) and a wicked person who is not a transgressor (one who intended to eat pork and ended up with lamb). Punishment requires both transgression and wickedness, but atonement and forgiveness are required of every wicked person.

Have a peaceful Sabbath,

Miki Abraham