On 'A Transgression for the Sake of Heaven'

With God's help

Dacha – 5766

Introduction

'A transgression for the sake of Heaven' is an act of transgression undertaken for a positive purpose. There is a passage in tractate Nazir that deals with this concept, and it appears even to view it positively, but it leaves its meaning and definition rather vague.

Many commentators try to deflect the charged meaning of this concept, and the positive attitude toward it (as implied by that passage), into more moderate and widely accepted channels. In their view, these are acts that are permitted from the standpoint of Jewish law, an interpretation that accords with accepted conventions regarding the totality of submission to Jewish law. In my humble opinion, the reason for adopting such an interpretation is not exegetical, for these interpretations are usually extremely strained in terms of the flow of the passage (as we shall note below), but rather an a priori assumption (which on its face seems very justified) that there cannot be halakhic legitimacy for a transgression. The claim that there is halakhic legitimacy for a transgression is problematic not only in relation to accepted conceptions of Jewish law, but contains a genuine logical contradiction: if there is halakhic legitimacy, why is this a transgression? And if it is a transgression, it cannot have halakhic legitimacy. A detailed summary of the various views and treatments may be found in Rabbi Zvi Heber's article, 'A Transgression for the Sake of Heaven,' Ma'aliyot 21, Av 5759 (hereafter: Rabbi Heber).[1]

Rabbi Heber divides the approaches he found to the issue of 'a transgression for the sake of Heaven' into three principal positions:

1. A commandment overrides a transgression: the transgression is a temporary extraordinary directive that this is how one ought to act in that situation.

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

3. An ex post facto approach: ideally one should act according to Jewish law, but if the intention is pure, the ex post facto evaluation of the transgressor is positive.

It is worthwhile to quote here Rabbi Heber's concluding words:

It seems to me that reflection on these approaches leads us to the conclusion that the main dispute concerns only the explanation of the concept 'a transgression for the sake of Heaven.' In practical terms, the differences between the approaches, if such differences exist, are minimal. In everyone's view, practically speaking, a person is obligated to observe all 613 commandments in all their details and particulars; one must obey the temporary extraordinary directive of a prophet and of a religious court in whatever they say; everyone agrees that there are situations in which one must decide whether to adhere to one value or another, and that the examination must be careful and precise, and undertaken by a great person; according to all views, after the giving of the Torah we live in the world of Jewish law and are subject to it. It seems to me that all would also agree that we are incapable of assessing the value of every act, and it may be that a person acts outside the bounds of Jewish law and receives reward from Heaven, but one should not act in this manner. The main dispute among them concerns the explanation of the concept 'a transgression for the sake of Heaven,' a philosophical explanation of historical acts, and likewise a philosophical perspective on the world of commandments and the place of man within that world.

A practical disagreement between the various approaches would arise chiefly in cases of collision between different values, and they would disagree over the question of what standard is used for decision in such a case. Is the righteous person or the leading sage of the generation permitted to instruct that a forbidden act be done, and even to do it himself? Or is passive omission preferable unless we have among us a prophet or a proper religious court? Is this true in every practical question, or only in 'smaller' matters, and so forth? But this question does not depend specifically on these approaches, but mainly on the question of the individual's power in such decisions. It is very difficult to describe a reality in which there would be a practical disagreement because of a different understanding of the concept 'a transgression for the sake of Heaven.'

According to the picture presented there, the debate appears merely theoretical, and in practice, according to all opinions, there is a complete obligation to obey Jewish law in every situation and in every case. 'A transgression for the sake of Heaven' is an act that is permitted from the standpoint of Jewish law. Even according to the views that belong to the first direction, Rabbi Heber argues that in practice this is an act done on the instruction of a religious court or a prophet. True, the act of Yael, which is brought in the Talmud as an example, contradicts this criterion, but he cites a responsum of Rabbi Kook that since the situation was clear and unambiguous (?) she acted as the agents of the court, and this is like an act done on the instruction of a religious court and prophet in the full sense, that is, an act permitted by Jewish law (the term 'transgression' is only a label).[2]

It should be noted that once this is established, the distinction between a transgression done on the instruction of a religious court and an ordinary transgression is emptied of content. After all, any person who finds himself in an extreme situation and thinks he is required to commit a halakhic transgression will say that this is a clear case and therefore he is acting as their agent. Hence, at least de facto, this is a permit for acts of 'a transgression for the sake of Heaven' against Jewish law and without oversight by an authorized body.

In the present article I wish to show that this summary is merely a reflection of the a priori premise that accompanied Rabbi Heber throughout the article (as he himself notes), and that accompanies many commentators as well (especially in light of the fear of Sabbatean approaches), namely that there cannot be halakhic legitimacy for a transgression.

This article has two main aims: 1. to propose a way of reading the dictum 'A transgression for the sake of Heaven is great' in its plain sense, while explaining the course of the passage in the Babylonian Talmud, Nazir, and through conceptual clarification that resolves the logical problem mentioned above. 2. In the course of our discussion, to point out common inaccuracies in interpretation (not necessarily Rabbi Heber's) regarding several views in this passage (mainly regarding the Netziv and the author of Sefer Ha-Ikkarim).

There is no pretension here to detail and survey all the sources in the passage (for that, see Rabbi Heber), and we shall focus on those sources that seem relevant to the purposes of the present discussion.

'A transgression for the sake of Heaven': the Nazir 23 passage

We begin by quoting the course of the Talmud in Nazir:

R. Nahman bar Yitzhak said: A transgression for the sake of Heaven is greater than a commandment not done for its own sake. But did not Rav Judah say in Rav's name: A person should always engage in Torah and commandments even when not for their own sake, for from doing them not for their own sake one comes to do them for their own sake? Rather, say: it is like a commandment not done for its own sake, as it is written: 'Most blessed among women be Yael, the wife of Heber the Kenite; among the women in the tent shall she be blessed.' Who are the 'women in the tent'? Sarah, Rebecca, Rachel, and Leah. R. Yohanan said: That wicked man had intercourse with her seven times at that moment, as it is said: 'Between her feet he bent, he fell, he lay…' But was she not deriving pleasure from his intercourse? R. Yohanan said: All the good of the wicked is only evil for the righteous, as it is said: 'Beware that you speak not with Jacob either good or bad.' Granted, 'bad'—fine; but why not 'good'? Rather, is it not to show that his good is evil. Indeed, learn from this.

The passage brings as an example the act of Yael, the wife of Heber the Kenite, who had sexual relations with Sisera in order to kill him. A little later, a similar evaluation is brought with respect to Tamar's act:

Ulla said: Tamar committed harlotry, Zimri committed harlotry; Tamar committed harlotry—and kings and prophets came forth from her; Zimri committed harlotry—and many tens of thousands of Israelites fell because of him.

Let us note that there are additional cases mentioned there in the passage, such as Esther and the daughters of Lot. True, the passage contains no explicit link to the deed of Lot's daughters (who initiated sexual relations with their father because they thought the entire world had been destroyed and that this was the only way to continue human existence), but it is hard to avoid the obvious connection. The passage there refers in several places and in several contexts to the deed of Lot's daughters as a commandment (as opposed to Lot's own deed).[3] From the context of the passage it emerges quite simply that the act of Lot's daughters, despite involving incest,[4] fell under the category of 'a transgression for the sake of Heaven.'[5]

There is a similar passage in Berakhot 63a (on the Mishnah of 'It is a time to act for the Lord'), which says as follows:

Bar Kappara expounded: Which is the brief passage on which all the essentials of the Torah depend? 'In all your ways know Him, and He will make your paths straight.' Rava said: even with respect to a transgression. [Rav Papa said: This is what people say: 'At the mouth of the tunnel, the thief still calls upon the Merciful One.'] [6]

We shall not deal directly with this passage here.

Two initial directions in interpreting the passage

As stated, many commentators interpreted the passage as meaning that no actual transgression is involved here, and the reasons for this were explained above.[7] Yet R. Joseph Ibn Shu'eib, in his homilies, writes as follows:[8]

Therefore, a person who is truly a person uses it for matters that are necessary for the world's essential needs, as the sages said: 'In all your ways know Him,' even with respect to a transgression—meaning in eating… which are matters that lead to transgressions; one should intend them for the sake of Heaven. And some interpret it to mean even an actual transgression, if his intention is for the sake of Heaven, as they said: 'A transgression for the sake of Heaven is great,' etc., as in the case of Yael.

One should note that his words imply that our passage, according to all views, is interpreted as an actual transgression. The hesitation and dispute he reports concern only the Berakhot passage mentioned above.

Below we shall see that the Netziv also interprets the passage this way. As we have said, this interpretation seems closer to the plain meaning of the passage, but the fundamental difficulty of granting halakhic legitimacy to transgressions (which is probably what led the other commentators to interpret it differently) indeed requires clarification.

The flow of the passage

In order to justify our claim, we must examine in detail what emerges from the flow of the passage itself. To clarify the discussion, we shall divide the Talmud's argument into stages and discuss each one separately.

1. The basic assertion of R. Nahman bar Yitzhak. The Talmud opens with the principled assertion that a transgression for the sake of Heaven is greater than a commandment not done for its own sake. At first glance, the simple assumption is that such an act is permitted and even desirable, and the assertion concerns only the question of the value of such an act. R. Nahman bar Yitzhak determines that such an act is more important than a commandment not done for its own sake. And what of a commandment done for its own sake? It seems that, at least at this stage, it is certainly more important than both of these.

Already here we should ask ourselves the following question: if indeed the meaning of the term 'a transgression for the sake of Heaven' is a halakhically permitted act (for example: desecrating the Sabbath in order to save lives), would we say of it that it is equivalent to a commandment not done for its own sake? Is it at all justified to call it a 'transgression'? After all, this is a full-fledged and important commandment, and as is well known, both the person who asks and the one from whom he asks are spillers of blood. Such an act is surely equivalent to a commandment done for its own sake, and even more than that.

From here there is clear proof that 'a transgression for the sake of Heaven' is not a halakhically permitted act, and certainly not a halakhic commandment. At most it is an act permitted ex post facto, but no more. Later in the passage as well, when the evaluation of the act changes, it is reasonable to assume that the meaning of the term itself remains unchanged, for the give-and-take concerns the attitude toward this concept and not its very definition.

2. Objection. The Talmud now objects to the assertion above from the instruction that one should engage in Torah and commandments even when not for their own sake, since through that a person will come to perform them for their own sake.

On its face, it is not clear what the objection is here. Why does the fact that one should engage in commandments not for their own sake contradict the claim that a transgression for the sake of Heaven is better than a commandment not done for its own sake? Was there an implicit initial assumption in the words of R. Nahman bar Yitzhak that one should not engage in commandments not for their own sake? Why can we not say, to the same extent, that we should engage in transgressions for the sake of Heaven, and therefore there is no problem in their having the same status as commandments not done for their own sake?

3. Resolution: The Talmud resolves this 'objection' by changing the relative evaluation of a commandment not done for its own sake and a transgression for the sake of Heaven: the dictum of R. Nahman bar Yitzhak should be read as stating that the two are equal (and not that a transgression for the sake of Heaven is greater, as we thought in the initial understanding).

This 'resolution' is also unclear. How does it resolve the objection? If the two are equal, is it now clearer why commandments not done for their own sake also have value? Could it not be that they have value and yet a transgression for the sake of Heaven is greater, or perhaps the reverse: that there is no value to them, and therefore no value to a transgression for the sake of Heaven either? Why does this change of status answer the objection, whatever exactly the objection may have been?

4. Proof: The Talmud continues with proof from the verse that says, 'Most blessed among women be Yael,' that is, that Yael is more blessed than the four matriarchs.

This 'proof' too is wholly unclear. First, why are the matriarchs regarded as women who performed commandments not for their own sake?[9] Second, this implies that Yael is better than they are, as in the version at the beginning of the discussion, and not that they are equal, as the Talmud understood in its conclusion. If so, how does the verse serve as proof for the Talmud's resolution? At first glance, it takes us back to the problematic understanding with which we began.

5. The role of pleasure. The discussion ends with a side-question: how can Yael's act be considered a transgression for the sake of Heaven if she derived pleasure from the transgression? The answer given is that the good of the wicked is evil for the righteous, that is, there was no pleasure here from the act. This point is not related to the main body of the passage, and we shall return to it below.

Thus, the flow of the passage is completely unclear: neither the objection, nor the resolution, nor the proof for the resolution brought from the verse. It seems that we must read the passage in an entirely different way, and then all the difficulties disappear, as we shall suggest in the next section.

A proposal for the plain meaning of the flow of the passage

The initial difficulties stemmed from our assumption that the subject of R. Nahman bar Yitzhak's dictum is a transgression for the sake of Heaven, and that he comes to determine a positive attitude toward it. But this is probably a mistake, and it seems that this is what led to all the other difficulties in understanding the passage as well. We propose that the initial statement of R. Nahman bar Yitzhak is, at the initial stage, actually a claim about a commandment not done for its own sake (and not about a transgression for the sake of Heaven, as the simple understanding suggests). The content of the claim is that one should not perform a commandment not done for its own sake, for it is even worse than a transgression. But there would be no point in comparing a commandment not done for its own sake to a transgression not done for its own sake, for then we would have a trivial comparison (it is obvious that a commandment not done for its own sake is better than a transgression not done for its own sake). Therefore R. Nahman bar Yitzhak compared it specifically to a transgression for the sake of Heaven. But in the final analysis his intention is to say something about a commandment not done for its own sake, not about a transgression for the sake of Heaven, as explained.

According to this proposal, R. Nahman bar Yitzhak introduces the idea that one should not perform a commandment not done for its own sake, and that this is even worse than a transgression for the sake of Heaven. From this it follows that his straightforward assumption was that there was no possibility of permitting the performance of a transgression for the sake of Heaven. The novelty is that a commandment not done for its own sake is even worse. This is clear proof that a transgression for the sake of Heaven does not mean an ordinary halakhic override (such as desecrating the Sabbath to save life), but an actual act of transgression.

The Talmud now objects to R. Nahman bar Yitzhak: how can he say that one should not perform a commandment not done for its own sake (and that it is even worse than a transgression), when our tradition teaches that one certainly should perform a commandment not done for its own sake, because this leads to commandments done for their own sake? If so, a commandment not done for its own sake is a positive act (though not a perfect act like a commandment done for its own sake). Now the Talmud's objection is understood in its plain sense.

Indeed, when we read Rashi's wording carefully, it seems that he had difficulty understanding the passage, and apparently he too understood the discussion this way. Thus he writes (in the parallel passage in Horayot 10b, s.v. 'Zimri zana,' and see also our passage, though there less unambiguously):

Since he says that a transgression for the sake of Heaven is greater than a commandment not done for its own sake, it follows that a commandment not done for its own sake is a deficiency; but Rav Judah said, etc.

Thus Rashi writes that the dictum of R. Nahman bar Yitzhak is understood as demeaning a commandment not done for its own sake, and it is around this that the objection revolves. The Rosh writes likewise in his commentary to our passage.

At the next stage, the Talmud resolves the objection by saying that a transgression for the sake of Heaven is not greater than a commandment not done for its own sake, but equal to it. On our approach, the issue is not one of hierarchy—who is preferable to whom—but of absolute value. The Talmud now explains that the meaning of R. Nahman bar Yitzhak's dictum is not as it was understood in the objection (that is, that the subject is a commandment not done for its own sake), but that it should be understood in its plain sense, that is, as praising one who performs a transgression for the sake of Heaven. The comparative particle does not come to rank the relation between a transgression for the sake of Heaven and a commandment not done for its own sake, but to say that just as a commandment not done for its own sake should be performed (and one certainly should not cancel a positive commandment because one's intention is not for its own sake), so too a transgression for the sake of Heaven should be performed, and one should not fear the fact that it is a transgression. The deficiency should not prevent the act.

And indeed, the Rosh writes this explicitly in his commentary to the passage when he says:

Rather, say: a transgression for the sake of Heaven is great like a commandment not done for its own sake—for both are commendable.

The Rosh says that there is no comparison here between two values, but a general claim that both are worthy acts and should be performed.

Now comes the proof from the verse, which compares Yael to the matriarchs. In light of our remarks, there is no need at all to force the explanation that this refers to commandments of the matriarchs not done for their own sake; rather, it refers to the matriarchs themselves (as Maharik indeed understood in shoresh 167). Yael, who committed a transgression for the sake of Heaven, is wholly righteous, like the four matriarchs. In the circumstances in which she acted, her act was exactly what she ought to have done, precisely like an actual commandment (and certainly like a commandment not done for its own sake, which in circumstances where one lacks proper intention must still be performed).[10]

The conclusions that emerge from analysis of the flow of the passage are as follows:

1. The meaning of the term 'a transgression for the sake of Heaven' is indeed an actual halakhic transgression, and not an act that expresses an ordinary halakhic override (such as a positive commandment overriding a prohibition, or saving life overriding the Sabbath, and the like).

2. According to the Talmud's conclusion, in certain circumstances (such as those in which Yael, Tamar, or the daughters of Lot found themselves), one should perform the act ab initio, even though it is defined as a halakhic transgression. More than that: one who does so is righteous like the four matriarchs.

Fundamental difficulties

The term 'a transgression for the sake of Heaven,' as we have presented it thus far, raises serious difficulties. First, there is the question of boundaries: who can decide, how is one to decide (by what criteria), and under what circumstances, to commit a transgression for the sake of Heaven? But the more difficult and fundamental question is this: even apart from the problem of criteria of decision, how is such a concept possible in theory? How can Jewish law itself grant legitimacy to an act that is a halakhic transgression (= contrary to Jewish law)? Once an act receives legitimacy, does it not cease to count as a transgression? As noted, this appears to be a genuine logical contradiction, and this is probably why many commentators turn away from the plain-sense interpretation of the passage.

Another aspect of the same question is: by what tools does one decide to perform a transgression for the sake of Heaven at all? By halakhic tools, this act is a transgression (there is no halakhic rule that permits it). In other words: does the assertion 'A transgression for the sake of Heaven is great' belong to the halakhic sphere at all?

The Torah and Jewish law

From the last considerations it follows that the sphere of the discussion is indeed not Jewish law, but a broader sphere: Torah. As we have seen, from the standpoint of Jewish law this is indeed an act of transgression, but from the standpoint of Torah, in a broader sense, it is a positive act. A person who serves God is supposed to act according to the directives of the Torah, of which Jewish law is only one part. Thus there is a conflict here between the halakhic consideration and a more general Torah-value consideration.[11]

Let us bring an example. An actor is offered the chance to appear in a cigarette commercial. As part of this, he is expected to smoke a cigarette, and the financial compensation for the filming is very high. The actor approaches his doctor friend and asks whether he should accept the offer. The doctor answers him: from a medical standpoint—absolutely not. Smoking is harmful to health. And yet, as a friend I advise you to accept the offer, on economic grounds (because of the financial compensation). The bottom line is that even if the doctor's recommendation was to accept the offer, it would still be clear that medically this step is mistaken. The recommendation is based on the fact that extra-medical considerations outweigh the medical consideration, which is minor in this case, but do not cancel it.

The same is true in our case. From a halakhic standpoint, this step is forbidden, and that remains its status even in the conclusion. But there are extra-halakhic considerations that instruct us to do it nevertheless, and in extreme circumstances they outweigh the halakhic considerations.

One should note that this proposal contains a not-simple conceptual innovation. There is nothing novel in the claim that the concept 'Torah' is much broader than the concept 'Jewish law.' But it is generally accepted that Jewish law contains all the normative part of the Torah. Those parts of the Torah that are not included in Jewish law are not binding norms, but recommendations, important lessons, historical or spiritual descriptions, and the like. At first glance, it seems obvious that in a clash all of these are overridden by the binding normative part, namely Jewish law. Our proposal here implies that there are normative parts of the Torah that are not included in Jewish law, and are not necessarily overridden by it. This is a conceptual innovation. True, it seems at first glance merely semantic, but as we have seen (and shall see below), it also has practical implications.

Thus, a situation in which the discussion of a transgression for the sake of Heaven arises is one in which there is a clash between the commands of Jewish law and extra-halakhic norms. As we saw above, the conclusion of the passage is that the practical instruction is to perform the act despite its being a transgression. 'Practical instruction' here is not to be interpreted as a halakhic instruction, for from the halakhic standpoint and by halakhic tools this is a transgression. The instruction here is an instruction of the Torah, and not of Jewish law. In this way the logical problem posed above is solved. There is no halakhic legitimacy for a transgression for the sake of Heaven, but Torah legitimacy. The concept 'transgression' is a halakhic concept, but the legitimacy of 'a transgression for the sake of Heaven' lies in a sphere external to Jewish law.

And yet, difficulties remain

We must ask ourselves why instructions of this kind are not also included in Jewish law. Is this not merely a semantic change, whereby we call parts of Jewish law 'Torah'? The problem of boundaries and criteria also remains: how can one determine, and in what situations, whether one should commit a transgression for the sake of Heaven or not?

The last question may be formulated more broadly: how can we decide a conflict between Jewish law and extra-halakhic norms? What tools do we use when Jewish law itself is under discussion? Clearly these cannot be halakhic tools, for we are discussing a passage that weighs the status of Jewish law itself, and therefore the discussion must proceed by means of some objective tools (that is, tools located outside the two systems under discussion: Jewish law and Torah). As noted, use of halakhic tools will trivially yield that an act of a transgression for the sake of Heaven is a forbidden act.

This is the type of problem known in analytic moral philosophy as 'the incommensurability of values.'[12] Here we are spared the need to resort to it, since the two systems that stand on the two horns of the dilemma are not alien systems: the Torah contains Jewish law, and therefore it is quite clear that in a situation of conflict between them, the Torah will prevail.

As an example, let us take an internal halakhic conflict: saving life and desecrating the Sabbath. If Sabbath desecration and saving life were values derived from a more fundamental principle, which for convenience we may call here 'purity of the soul,' then perhaps we could measure the value of Sabbath observance in units of purity of the soul, and then the value of saving life (= the value of life) in those units, and finally compare the two results in order to decide the conflict. But if these are two values not derived from a more basic principle, what common scale would allow us to measure them relative to one another? The problem is far more severe when the conflict is between two value-systems that are alien to one another.[13]

But saving life and the Sabbath belong to the same system, and precisely for that reason the decision between them is not called 'a transgression for the sake of Heaven,' but an ordinary commandment. The decision in favor of saving life is itself the instruction of Jewish law, and therefore it is not considered 'a transgression for the sake of Heaven.'

If we recall how this internal halakhic conflict is decided, we will see this immediately. The consideration that appears in the Talmud on this matter is that if we desecrate one Sabbath for a given person, this will enable him to observe many Sabbaths.[14] That is, we have found a common measure for the two principles, and we measure them both on the same scale. In this case the scale is the value of the Sabbath (= how many Sabbaths will be observed). Desecrating the Sabbath has a measure of 1 (= one Sabbath will be desecrated), whereas the value of life on this scale is hundreds (= hundreds of Sabbaths that person will be able to observe later in life).

The same is true in our case: because Jewish law is part of the Torah, there must be a common scale, and that scale is the values of the Torah. This scale can 'weigh' both sides of the coin and lead us to a decision. The conflict should be resolved by finding the value of the halakhic command and the opposing values on the Torah scale, and comparing them.

Between the theoretical problem and the practical problems

One should note that this argument solves the theoretical problem raised above—how one can even define and decide a conflict of 'a transgression for the sake of Heaven.' But in practical terms, 'the Torah' is a vague concept, and it is hard to see how, in practice, one can weigh the two sides in a conflict of this sort in order to reach a decision. Clearly the tools cannot be halakhic, but must be more general value-tools. Let us now turn to several approaches to a transgression for the sake of Heaven, and how they cope with these problems.

A non-obligatory commandment, an optional matter

Rabbi Kook, in Mishpat Kohen responsum 144 (s.v. 'Y. u-Mai'), raises the possibility that we are dealing here with something like a non-obligatory commandment, or an optional matter. This conception assumes that the conflict, essentially, indeed cannot be decided, and it remains unresolved. This is a natural consequence of the problem of incommensurability, which necessarily leads to inability to decide the conflict. In such a situation both paths are possible, and therefore one who chooses the path of performing the transgression does something legitimate.

It seems that such an approach does not fit the full range of cases of transgressions for the sake of Heaven. The praise accorded to Yael does not look like a reaction to a neutral act. The same is true of the daughters of Lot (whose acts the Talmud in Nazir 23 refers to several times as a commandment). We also saw that the problem of incommensurability does not arise in cases where one of the two competing systems is included within the other.

The role of intention

The comparison between a transgression for the sake of Heaven and a commandment not done for its own sake raises the possibility of seeing the focus of the passage in the question of intention. At first glance, a commandment not done for its own sake is a good act with bad intention, whereas a transgression for the sake of Heaven is good intention accompanying a bad act. The context of the passage there (beginning with the Mishnah) also deals with the question of the relationship between intention and act. According to this proposal, the Talmud's conclusion, which compares a transgression for the sake of Heaven to a commandment not done for its own sake, means that while a perfect commandment includes both act and intention together, intention alone or act alone are also positive.[15]

Rabbi Heber (see there, chapter 4) cites a considerable number of sources that view a transgression for the sake of Heaven as a negative act with positive intention. Some of them go very far, and seemingly determine the evaluation of the act solely by the intention. That is, even if some act appears to be a transgression, if it is done from positive motives it will be regarded as a commandment-act.

One of the sources that are commonly interpreted this way is the author of Sefer Ha-Ikkarim, who writes as follows (III, chapter 29):

The general principle is that every act done by one who does it for the sake of Heaven merits thereby life in the World to Come, even if that act is considered evil. Our sages said, 'In all your ways know Him,' even with respect to a transgression, and they also said, 'A transgression for the sake of Heaven is greater than a commandment not done for its own sake.' Understand this principle and know it, for it is necessary for the Torah of Moses; otherwise the entire people of Israel would not merit life in the World to Come through the Torah except one person from a city or one individual in a generation.

But as Rabbi Heber notes, the author of Sefer Ha-Ikkarim is dealing with acts that are not actual transgressions. It should also be noted that even with respect to such acts he does not say that everything is determined by intention, but rather that even if the act is bad and forbidden, the person still receives some reward for the good intention. The context of the chapter makes it clear that this is his meaning (he is dealing there with the question of how all Israel can merit a share in the World to Come, and not with the prohibition or permission of the act itself), examine it carefully.

It therefore seems that the author of Sefer Ha-Ikkarim rejects the act of a transgression for the sake of Heaven in the sense defined above. He merely consoles the transgressor by saying that he will receive reward for his good intention. As we noted, there is room to interpret a transgression for the sake of Heaven as intention without act, but such an interpretation is very strained in the Talmud, as we saw above. The praise with which Yael and the daughters of Lot are praised does not look like an ex post facto attitude.

The Netziv's approach

The Netziv of Volozhin addresses a transgression for the sake of Heaven in several places in his writings. The main halakhic source is in Responsa Meshiv Davar, part II, sec. 9, where he writes the following:

And in this matter there are two conditions. The first condition is that one derive no pleasure at all from that transgression, as stated there regarding Yael, who was praised for having committed a transgression for the sake of Heaven, and the Talmud asks: but was she not deriving pleasure from the transgression? etc. This shows that although she was permitted to commit the transgression because of the saving of Israel's lives, nevertheless if she had derived pleasure from this transgression, she would not have been praised at all, for it is forbidden to derive pleasure from a transgression for the sake of Heaven. The second condition is that one must consider whether this transgression—of dispute or pursuit—is worthwhile relative to the commandment one thinks will come about through it. And this is the meaning of the sages' words about those who rule their impulse: that they derive no pleasure at all from doing this transgression for the sake of Heaven, and afterward they come to their calculation, namely, assess the loss that will result by means of this commandment against the reward received from that commandment; and it may be that the loss that will result is greater than its reward, and likewise the reward of the transgression for the sake of Heaven one intends as against the loss that will result afterward.

The Netziv determines here that a transgression for the sake of Heaven can be done only if the intention is positive. The evaluation of the act depends on the intention, and not only on the results of the act. For example, Yael the wife of Heber the Kenite—had she in fact intended her own pleasure, it would not have been a positive act, even if it would have led to the killing of Sisera.[16] At first glance, this is also the distinction we saw above between the daughters of Lot and their father, where the daughters intended a commandment and he intended a transgression.

However, when we read the Netziv's language carefully, it appears that his meaning is entirely different. He writes:

This shows that although she was permitted to commit the transgression because of saving Israel's lives, nevertheless if she had derived pleasure from this transgression she would not have been praised at all, for it is forbidden to derive pleasure from a transgression for the sake of Heaven.

Thus, she was permitted to commit the transgression in any case; only if she had derived pleasure from it, Scripture would not have praised her for it.[17]

What emerges from the words of the Netziv is that a transgression for the sake of Heaven does not depend at all on the intention of the act. The permission (indeed, even the obligation) to do it is a product of the circumstances and does not depend on intentions. True, there is a prohibition against deriving pleasure from the act, and one who derives pleasure violates a prohibition. But this is not a condition for the very permission and obligation to perform it. In this sense, the analogy that appears in the Talmud to a commandment not done for its own sake returns here. A commandment not done for its own sake must also be performed (by one who cannot perform it for its own sake), even though it is not a perfect act.

With regard to the daughters of Lot as well, one might at first have thought to interpret everything as depending on intention, but there too that is not the correct interpretation. The Talmud itself says of them: 'The ways of the Lord are upright; the righteous walk in them and sinners stumble in them,' meaning that Lot, whose intention was bad, is regarded as a sinner, whereas his daughters, whose intention was good, are regarded as righteous. But here too, as stated, it seems that the matter depends not on intention but on circumstances. The daughters of Lot thought that the whole world had been destroyed (as appears explicitly in the verse, and as Rashi writes there, s.v. 'and there is not a man in the land'), and therefore they wanted to do the act in order to continue human existence on earth. Lot, by contrast, knew from the angels that they had come only to destroy the cities of the plain, and therefore he knew there was no need for this act. That is apparently why the Talmud understands that Lot intended a transgression (see Nazir 23b), even though he was the coerced party in the act and his daughters were the intentional actors. Just imagine: if the daughters of Lot had derived pleasure from the act, would it then have been forbidden for them to do it? And what then of the continued existence of humanity? Here, in a fully clear way, the circumstances determine the permission, not intention and pleasure.

Conclusions from the Netziv: intention or purpose

The conclusion is that defining a transgression as a transgression for the sake of Heaven is not a function of intention, but of purpose (and therefore also of circumstances). An act of transgression whose circumstances are extreme, and the value placed on the scales is very great, can be considered a transgression for the sake of Heaven, and then there is an obligation to do it even though there is no halakhic permission for it. The general consideration overrides the halakhic consideration. Pleasure is a side question, and at most there is a prohibition against deriving pleasure from a transgression for the sake of Heaven (and this is the Talmud's question in the Nazir passage cited above: 'but she is deriving pleasure from the transgression').

This leads us to the second condition brought by the Netziv. The commandment for whose sake the transgression is committed must be of tremendously greater value than the transgression.[18] This characterizes most of the cases that appear in halakhic literature in contexts of a transgression for the sake of Heaven. Usually these are extreme cases, in which the positive value is immense, and therefore there is a consideration that permits the transgression. For example, a situation in which the spiritual life of a Jew, or of an entire community, is in danger (and in the case of the daughters of Lot: the continued existence of all humanity), as against a specific transgression that can save it.[19] This condition is what defines the condition of obligation to perform a transgression for the sake of Heaven. As we saw above, the first condition is not a condition for the obligation, but a side prohibition (to derive pleasure from a transgression for the sake of Heaven).

Thus, the Netziv really did understand the concept 'a transgression for the sake of Heaven' in the way we proposed as the conclusion from analysis of the passage. This is an act for which there is no permission from the standpoint of Jewish law, but in very extreme circumstances we are nevertheless obligated to do it. In contrast to Rabbi Kook's proposals mentioned above (though ultimately he too inclined to the Netziv's position, namely that this is an obligation and not an optional matter), it seems that we do have a criterion of decision, and this task is imposed on every person who finds himself in those circumstances (that is, circumstances in which the second condition exists: the gain is immense relative to the loss involved in the transgression), and not specifically on a religious court. For example, if a person sees that in certain circumstances the continued existence of all humanity is in danger, it would seem that he must act as the daughters of Lot acted.

One should note that this is a practical implication of the seemingly semantic shift we made between 'Jewish law' and 'Torah.' If we were to define a transgression for the sake of Heaven as an act permitted as a result of halakhic override, then in such circumstances there would be no permission at all to act in this way. We know of no recognized halakhic permission to violate prohibitions of sexual relations in order to save the continued existence of humanity. On the other hand, if there is room to argue that Torah values (not halakhic ones) constitute a weight that can override halakhic transgressions, then there is room for a position that obligates each person to act in this way even without invoking a halakhic mechanism of permission.

The practical problem: 'It is a time to act for the Lord; they have violated Your Torah'

Such a conception raises the practical problem all the more sharply. How can such a question be decided in practice? Are we to place the Torah in everyone's hands? Can any person who sees a situation that appears problematic to him violate grave Torah prohibitions in order to change it? This is, at first glance, the Sabbatean conception that so deterred the commentators and caused them to interpret the passage more conservatively.

At first glance, the determination of when we are in such a situation belongs to the 'fifth part of the Shulhan Arukh,' in the well-known terminology of the Hazon Ish. This expression denotes that the problem and its solution lie outside the boundaries of formal Jewish law, and are placed at the doorstep of a religious court. Rabbi Kook indeed points to a transgression for the sake of Heaven as an act done on the instruction of a religious court or a prophet (see Rabbi Heber, first approach, chapter 3.1).[20]

We find in the sages a principle similar to the law of 'a transgression for the sake of Heaven' when they speak of 'It is a time to act for the Lord; they have violated Your Torah.' In such situations, one is permitted to commit a transgression for the sake of an important value (= the preservation of the Torah). The Talmud in Gittin 60 describes in this way Rabbi's decision to write down the Oral Torah (= the Mishnah), and the main passage is in the Mishnah at the beginning of chapter 9 of Berakhot and the Talmud there.[21]

In fact, however, this is a different principle. Here we are dealing with an enactment by an authorized religious court, which can determine that one should violate a certain prohibition.[22] By contrast, we are dealing with an act of transgression by an individual, who decides without halakhic instruction to violate a prohibition in order to save an important value. Rabbi Kook notes in his above responsa that a court enactment for the sake of safeguarding society certainly cannot be considered a transgression for the sake of Heaven, for it enters as an integral part of Jewish law itself.

Thus, the phenomenon of a transgression for the sake of Heaven deals specifically with the action of an ordinary person, in one-time circumstances. An act of a religious court that uproots something from the Torah (by passive omission, even forever—such as not sounding the shofar on Rosh Hashanah that falls on the Sabbath; and writing the Oral Torah is the uprooting of a prohibition by active commission forever) is part of Jewish law itself. But in such cases, without the guidance of a religious court or a prophet, apparently we are bound by the approach of 'What have you to do with the hidden counsels of the Merciful One?' (Berakhot 10a). What business is it of ours to calculate the divine account? At first glance, if the Torah forbids the act, then we ought to return the keys upward and behave according to Jewish law, and not involve ourselves in considerations beyond Jewish law (as though to be 'wiser than the Holy One, blessed be He').

Criteria

A number of criteria may be proposed that define and delimit the legitimacy of transgressions for the sake of Heaven. First, it is clear that such acts must be one-time occurrences. There is no possibility of adopting a fixed pattern of conduct in the category of a transgression for the sake of Heaven. The reason is that if this really were a fixed pattern of conduct, then the Torah itself should have defined it in Jewish law, or at least a religious court should have enacted it as a permanent ordinance.

The implicit assumption here stems from the difficulty that accompanies the concept 'a transgression for the sake of Heaven': if this is indeed the proper way to act, then why did Jewish law itself not define it as a commandment-act? In other words: why are there acts required of us, and yet not included in Jewish law? Why are there normative parts of the Torah that remain outside Jewish law? The answer is that transgressions for the sake of Heaven are always one-time acts in unique circumstances. Such situations cannot enter fixed Jewish law. True, theoretically the Torah could have instructed us that where there is a danger of the annihilation of humanity, one may violate a prohibition of sexual relations, but there are countless such circumstances, and it is impossible to include them all in fixed Jewish law. Therefore one-time directives are not included in Jewish law.[23]

And indeed, in the responsa of Rabbi Azriel Hildesheimer, part I, Yoreh De'ah, sec. 219 (s.v. 'Mi-kan nir'eh le-aniyut da'ati'), he writes that one may wonder whether it is possible to permit a certain act under the law of a transgression for the sake of Heaven when it is done in a fixed manner. On our approach, it seems that a transgression for the sake of Heaven is essentially a one-time act. A permanent permission would turn it into part of Jewish law. In a fixed case, this is certainly entrusted to a religious court to determine within the framework of Jewish law.

A second limitation must be that the positive value at issue appears clearly in the Torah. Reformist tendencies generally feed on attempts to bring into Jewish law values whose source is external. The permission to commit a transgression for the sake of Heaven is based on the fact that the value for whose sake the transgression is committed is a value that the Torah itself instructs us toward. Only for that reason does this value override (in the specific and extreme circumstances that have arisen) halakhic values (because they too derive their force from the Torah, since Jewish law is part of the Torah). In Yael's case, there was saving life (albeit rather indirect) of the Jewish people as a whole, and in the case of the daughters of Lot, the issue was the annihilation of all humanity (according to the picture they had in mind). Other values, however good and important they may be—such as equality, freedom, and the like—will be difficult to use as a basis for permitting a transgression for the sake of Heaven, and certainly where a fixed pattern of conduct is involved.

The third criterion is that this positive value must appear with exceedingly high intensity, immeasurably greater than the intensity of the gravity of the transgression (as the Netziv wrote 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 because of a comparison of magnitudes.

As we noted above, the fourth element, the prohibition of deriving pleasure from the act, is not a condition of the permission to commit a transgression for the sake of Heaven, but rather a side prohibition, and therefore we do not count it here.

As stated, the basis of the permission to commit a transgression for the sake of Heaven against Jewish law is that Jewish law simply does not deal with unique circumstances. In fact, the decision to commit a transgression for the sake of Heaven is what the Torah wants from us, except that this will is not expressed in Jewish law, because of its limitations (namely, not dealing with unique situations). Reform proposes changes that generally satisfy none of these three criteria.

Comparison to the legal approach: conscientious objection

At first glance, the concept 'a transgression for the sake of Heaven' parallels extra-systemic concepts that also exist in the legal world. For example, conscientious objection, or even civil disobedience. Acts of both these types are regarded as acts contrary to the law, but ex post facto the law gives legitimacy to those who perform them for proper reasons and in an upright and honest manner (and not with criminal intent. One should note that here too intention is an important parameter in evaluating the act).

But it is important to note the essential difference between the cases. Conscientious objection and civil disobedience are situations in which the system gives ex post facto legitimacy to an incorrect act, which even after it has been performed is still regarded as an act not accepted by the system. There is here recognition of the right of a certain person to act according to his principles even in a way that is, in our eyes, incorrect, but not genuine legitimacy. No one would praise the objector; on the contrary: a condition of legitimacy is that the ideological offender bear responsibility for his act. Nor would anyone tell others who do not think as he does to do as he did. By contrast, a transgression for the sake of Heaven is a different category: here the Torah determines that this is the correct act in the specific situation. This is not merely a person's right to act incorrectly, but recognition that the act is correct even though it stands in frontal contradiction to Jewish law. The Torah even calls upon the person who finds himself in an exceptional situation to act this way ('A transgression for the sake of Heaven is great'). Therefore, this is a category entirely different from conscientious objection.

Is Jewish law perfect?

The novelty appears even greater when one notices that there is here an acknowledgment by Jewish law that its instructions cannot cover all possible situations. In exceptional and extreme situations, a person can act in ways that contradict Jewish law, because Jewish law itself would have told him to act this way had it been able to address such situations specifically. The acknowledgment by a religious-divine system of its limitations and its inability to address all situations seems very surprising.[24]

To the best of our knowledge, in ordinary legal systems, even though their foundation is human beings prone to error, we do not find a parallel acknowledgment of limitations. As we have seen, there one finds recognition of a person's rights to act contrary to the system's instructions and bear the consequences and sanctions imposed on him, but not an a priori recognition of the system's limitations and of an obligation to act, in extreme situations, in a way that is contrary to the law. In such a situation, at most there would be mitigation of the punishment (he would receive a fine of one shekel), or even its cancellation, but not an a priori instruction to act against the law. From inquiries I conducted with legal experts, it became clear to me that in modern legal systems there is no legal term parallel to the meta-halakhic (or Torah-based) concept of 'a transgression for the sake of Heaven.'[25]

[1] See also my article, 'On 'A Transgression for the Sake of Heaven',' Middah Tovah, Parashat Vayera, 5767 (hereafter: Middah Tovah).

[2] See Rabbi Heber, chapter 3.1.

[3] See also my discussion there in Middah Tovah.

[4] True, a Noahide is not warned with respect to his daughter, and the commentators have already noted this (see Nachmanides' commentary ad loc., and others). Nevertheless, from the treatment of the act as 'a transgression for the sake of Heaven' it is clear that there was some sort of transgression here, for otherwise it would not enter the discussion. It is possible that Lot, who was careful about the integrity of his household and marriage, was indeed warned with respect to his daughters, since in his case there exists the presumption that most acts of intercourse are attributable to the husband, unlike among other gentiles. The matter still requires clarification.

[5] So too inferred, incidentally, the author of Mishneh Halakhot, vol. XII, sec. 184, s.v. the opening words 'Ivara de-yesh lomar.' See in Rabbi Heber additional sources that assume this implicitly (see, for example, the words of Rashi that he cites in note 33, and see also note 7 there).

[6] That is the reading in the Frankfurt manuscript, in several medieval authorities (Rabbenu Yonah and others), in Iyyun Ya'akov, and in other sources.

[7] See Rabbi Heber, note 12. See also Responsa Maharik, shoresh 167.

[8] Derashot R. Joseph Ibn Shu'eib, part II, p. 474, Vagshal edition.

[9] On this, several medieval authorities wrote that the meaning is a particular act of the matriarchs that was indeed done not for its own sake (see Middah Tovah in the description of the Talmud's flow, and Rabbi Heber in note 8). Maharik, however, in shoresh 167, interprets it as a simple comparison to the stature of the matriarchs.

[10] The medieval authorities who interpreted the comparison as referring to commandments of the matriarchs not done for their own sake apparently did so for reasons of the wording of the Talmud, since after all the Talmud compares it to a commandment not done for its own sake, and therefore one must find such commandments among the matriarchs as well.

[11] For a lucid description of such an approach, see the article by Shay A. Wosner in Masa el Ha-Halakhah, Amichai Berholz (ed.), Yediot Aharonot and Beit Morasha, Tel Aviv 2003. Wosner also provided the example of the smoking actor, which was brought immediately afterward.

[12] See Middah Tovah for a more detailed treatment.

[13] The decision in the smoking example above is very interesting in this context, since it points to qualifications in the incommensurability of values, but this is not the place to discuss it.

[14] See Shabbat 151b and Yoma 85b.

[15] See Kovetz Ma'amarim, by R. Elhanan Wasserman, 'Repentance.'

[16] So too he writes in Mishpat Kohen, sec. 143, s.v. 'Ve-hineh im.'

[17] The Rosh too, in his commentary to the Nazir passage, interprets the question 'but was she not deriving pleasure from the transgression?' this way, though for different reasons. This also seems implied in Tosafot, s.v. 'u-ledrosh lehu,' Ketubbot 3b, and Tosafot, s.v. 've-ha ka,' Yevamot 103a. See also Tosafot, s.v. 'mah rotze'ah,' Yoma 82b, where perhaps it may be understood as a condition of the permission itself.

[18] See also Responsa Halakhot Ketanot, part I, sec. 4, s.v. 'u-lemaskana de-milta.' Likewise Mishpat Kohen, sec. 143, s.v. 've-hineh im,' regarding what he cites from Tosafot, s.v. 'ela,' Bava Kamma 91b.

[19] There are quite a few examples of this. See, for example, Yehudah Ya'aleh, part II, Even Ha-Ezer and Hoshen Mishpat, sec. 140, s.v. 'u-ma she-katav ma'alato.' Maharik likewise writes so in shoresh 167, s.v. 've-al.'

[20] We have already noted, however, that explaining Yael's act by the rule of acting as the agents of the court empties this approach of its content.

[21] See Rabbi Heber, the beginning of chapter 2, and also notes 12 and 33 there.

[22] True, this is a transgression by active commission. See Yevamot 90a and parallels.

[23] Compare Maimonides' third shoresh. Let us note that even with respect to rabbinic laws, the Talmud in Eruvin 21b says that they were not written in the Torah for quantitative reasons (because one cannot make books without end).

[24] This issue leads us to the discussion of evasive devices and legal stratagems. Is the space within Jewish law necessarily the product of a real gap, or can there too be a situation of incompleteness in Jewish law (and the practical difference would be whether in such cases one is obligated to preserve the spirit of Jewish law, or whether one may employ legal stratagems ab initio), but this is not the place.

[25] In the Al-Ard case, a consideration of natural law was raised, according to which, although the law grants freedom and freedom of expression to every citizen, where a citizen calls for the destruction of the state it is unreasonable to grant him such freedom and such a right. Similarly, natural law could be a legal instrument that validates acts of transgression in extreme situations, and de facto would operate like the mechanism of a transgression for the sake of Heaven. In any event, the very fact that there is not even an adequate legal term for such a situation is itself quite telling.