Defining an Offense: Intention or Act? (Column 441)

Dedicated to my daughter Rivka, with wishes for success in yeshiva

A few days ago I studied with my daughter Rivka a sugya in Makkot in which the Tannaim dispute the laws of warnings (hatra’ot) that divide liability for lashes. This stirred thoughts in me about the very nature of transgressions in general, and it connected to a remark I made about unintentional sins (shogeg) in my article on causing a secular person to sin. The current learning suggested the possibility of extending that foundation also to intentional sins (mezid). The discussion here will focus on the conceptual plane and be conducted from a general vantage point, since it depends on several complex sugyot and this is not the place to delve into all their details. The following should therefore be seen as a proposal only.

Defining the Problem

In Column 353 I dealt with the meaning of intention versus act. There I cited the sugya of “a transgression is called transgression” (Nazir 23) and various Talmudic statements that address an act of transgression without intent and an intent to transgress without an act. My conclusion distinguished between atonement (kapparah), which relates primarily to the act, and the degree of a person’s criminality, which is determined by intentions. If one intended to commit a transgression but, for some incidental and technical reason, the act did not materialize (he thought he was eating pork and it turned out to be lamb), then he is a rasha (wicked person) exactly like one who actually committed the transgression. One who attempted murder but the firing pin was broken is a rasha just like one who actually murdered. His ineptitude does not make him less wicked. However, as I explained there, there is no place to impose responsibility for outcomes in such a case, since there are no outcomes.

Now we can ask about punishments. Lashes and capital punishments given for intentional transgressions will certainly not be administered unless the transgression was actually committed. Likewise, a sacrifice for an unintentional sin is brought only if a transgression was in fact committed. It would seem, then, that intentions have no significant halakhic meaning, and what determines the definition of the transgression and liability for punishment is the act.

In light of the earlier analysis, this is quite surprising. I would have expected punishments to be imposed according to the person’s wickedness, and not be dependent on the outcome. I wrote there that this seems to indicate that punishments in halakhah are more about atonement (i.e., responsibility for and treatment of the outcome) than a sanction on criminality and wickedness. In this column I will suggest a different perspective on the significance of intentions even with respect to the halakhic definition of transgressions and liability for punishment.

For What Does One Incur a Sin-Offering: Two Possibilities

Halakhah (Shabbat 69a and parallels) states that for prohibitions whose intentional violation is karet, their unintentional violation requires a ḥatat (sin-offering). It appears that as long as a person performed a prohibited act, we cannot ignore it (unless he was coerced, in which case it is considered as if he did not act), and the distinction between intentional and unintentional concerns only the sanction: karet and/or death for intentional, and a ḥatat for unintentional. From this perspective, in both cases the sanction is imposed for performing the act; that is, the halakhic definition of the transgression is the performance of the prohibited act. However, in the article cited above I suggested a different view of unintentional sins and liability for a ḥatat, tying them specifically to intent and thought rather than to the act.

The starting point is the rule that if one ate two olive-bulk (kezayit) portions of chelev (forbidden fat) under one lapse of awareness (heʿelem eḥad), he is liable for only one ḥatat even though there were two prohibited acts. In Afikei Yam, vol. II, §§5–6, the author discusses at length the parameters of liability for a ḥatat in light of this rule, and at the beginning of §5 he presents two possibilities to explain it. The first possibility:

Regarding the rule that one who eats two olive-bulks of chelev under a single lapse of awareness is liable only once, I would inquire into the reason: Is the reason that liability for a ḥatat is for the shogeg (unawareness), and since no knowledge intervened in between, there is but one shogeg; and even if he ate one in the morning and one toward evening, nevertheless it is all one shogeg, and he is liable only once, as if he had eaten them in one go. Even according to R. Eliezer (Keritot 15a), as explained by Rabbah there, that one who eats two olive-bulks of chelev under one lapse is liable twice, that is only when he did not eat them in one go, and since he did two [acts] he is liable twice, even though it is one shogeg; but if he ate them in one go, even according to him he is liable only once. As explained there: one who reaps and reaps is liable twice, but if he reaped two dried figs at once he is liable only once. And the Sages who disagree with R. Eliezer hold that even though he did two [acts], since it is one shogeg, it is as if he did them at once by a scriptural decree, and he is liable only once. And so it appears from Rashi (Shabbat 72a) s.v. “And they dispute,” who writes: “This is not comparable to knowledges between eating chelev and eating chelev, which divide according to all opinions; there, the liabilities are for shogeget, and since there was knowledge in between, there are two shogeget.” And so it appears from the Gemara (Keritot 12b): “Concealments divide—here there is one concealment.” It is proven from this that the reason he is liable only once is that there is one shogeg, and the liability is on the shogeg.

And the second possibility:

There is also room to say that even according to the Sages who dispute R. Eliezer, since he did two [acts], in truth he is liable for two by law, and only that it is a scriptural decree that so long as he did not become aware of his sin and did not yet incur the obligation to bring an offering, he is exempted with one offering for both; similar to the law of a woman who gives birth, that so long as she has not reached the time when she is fit to bring an offering, she brings one offering for many births; but if he became aware in between one eating and the other, since he already incurred an obligation to bring an offering for this eating, it is no longer applicable that he be exempted with that offering for what he will eat afterward.

The second possibility is the prevalent one: the obligation of the ḥatat is for the act, but there is a scriptural decree that if there was no intervening knowledge, the offering for the first act atones also for the second.

At first glance the first possibility seems to argue that the obligation of the ḥatat is for the lapses (shogeget) and not for the acts, and therefore when there is a single lapse one is liable for only one ḥatat, despite there being two acts. So his continued formulations there suggest. But upon close reading of his wording here, one can understand his intent a bit differently: if both eatings are done under one lapse, they combine to one eating, and therefore only one offering is required for them. That is, even under this possibility, liability for the ḥatat is for the act and not for the lapse. The difference between the two possibilities is only how many acts there were here. In short, according to him the discussion is whether the concealment (heʿelem) combines the acts or only the offerings, but in any case it is clear to him that liability for a ḥatat is for the act and not for the lapse.

He cites the Ran (Nedarim 17a) and the Ritva (Makkot 20a), from whose words it emerges explicitly that under one lapse the acts combine into one act (as in the first possibility). In the Gemara in Nedarim there we see that a Nazirite who conditioned his Nazirite status on his eating a kezayit—if he ate several kezayitim, he incurs that number of Naziriteships. And the Ran writes that this is only if he ate them under different concealments (with intervening warnings), but if he ate them under one concealment he incurs only a single Nazirite status. From here it is proven that in his opinion, when one performs several acts under a single shogeg, it is considered one act not only with respect to the laws of ḥatat (for here the discussion has nothing to do with ḥatat; it addresses only how many eating acts there were).

For What Does One Incur a Ḥatat: A Third Possibility

In my understanding, there is another possibility—indeed, the simplest and most natural in light of the rules of combining (tziruf) for ḥatat obligations: the ḥatat is brought for the very shogeg. I would like to argue that the ḥatat is not brought because I ate chelev but because I acted in error—that is, because I did not know it is forbidden to eat chelev or did not know that this was chelev—i.e., for negligence. Of course, even according to this possibility, an act is required for a person to incur a ḥatat, but the act is only a condition for incurring the ḥatat. The ground that obligates a ḥatat is the shogeg and not the act, but a shogeg that did not find practical expression does not obligate a ḥatat. Only a shogeg that led to the problematic outcome obligates a ḥatat. The logic is that if we were to obligate on the thought alone, then every fleeting thought that perhaps I will eat chelev would obligate a ḥatat. That is neither reasonable nor practical.

According to this proposal, there is no need to assume (as stated in the first possibility in Afikei Yam) that the two eatings are considered as one eating. They are indeed two eatings, but with respect to the obligations of ḥatat what matters is the number of lapses (shogeget) and not the number of eatings. There is no need to combine the eatings or to posit special scriptural decrees regarding ḥatat. Thus, in my view this possibility fits well with the straightforward sense of the law.

Note that even under this possibility I am not seeking to sever the transgression entirely from its practical outcome. The problem in eating chelev is the act of eating chelev, for that is how the Torah defines the transgression. But when a person does this unintentionally, one cannot fault him for the act itself (eating the chelev), and therefore what he is faulted for is only the shogeg that led to the problematic result—and for that he incurs a ḥatat. The definition of the transgression is the act, but that is only a formal definition. The claim against the person—i.e., the problematic aspect of his conduct for which he owes punishment and atonement—is the shogeg, not the act.

Implication: Causing an Atheist to Transgress

In the article cited above I suggested an implication regarding causing an atheist to sin.[1] Suppose I cause an atheist—who has no notion (for the purposes of the discussion we can treat him as a tinok shenishba)—to eat chelev (with a tsere under the ḥet), which incurs a ḥatat. On the surface this is causing an unintentional transgression, for ultimately he ate a forbidden food due to my fault/assistance. But that is true only if we understand that an unintentional transgression is the eating of the prohibition, as we saw in Afikei Yam.[2] By contrast, according to my proposal, the claim against the unintentional sinner is only that he does not know that eating is forbidden—that is, the shogeg. That claim exists whether or not he actually ate, and therefore the eating does not change his status. It is true that without his actually eating he does not incur a ḥatat, but that is merely a law in the realm of the ḥatat whose purpose, as I explained above, is apparently to verify that there truly was a shogeg (and not a passing thought). But the status of the “one caused to stumble” is not more problematic when he ate compared to when he did not (in line with the simple logic cited above concerning one who intended to transgress but did not).

One can, of course, argue that by feeding him I caused him financial loss, since he now incurs an obligation to bring a ḥatat, but that does not touch our discussion, for that is not causing a transgression but causing a loss. And in prohibitions that carry no ḥatat, even this aspect is absent. Moreover, if that atheist has already eaten chelev in his life, then I have not even added a ḥatat for him, since he eats this chelev too under the same continuing lapse.

It is true that eating chelev may cause problematic spiritual consequences (since, as I explained above, the transgression defined by the Torah is the act of eating chelev, apparently because it has problematic spiritual effects). Yet my claim is that there is no halakhic transgression by the person, for such a case resembles a minor or a person of unsound mind eating chelev. There is no claim against the person who “transgressed,” and in that sense there is no ground for punishment or a sacrifice.

Another Implication: The Number of Ḥatat Offerings for a Tinok Shenishba

By law, a tinok shenishba (one raised without knowledge of Torah) must bring one ḥatat for each category of transgression (because ignorance of each category is a separate lapse). In note 20 in my aforementioned article I mentioned that later authorities infer from Maimonides’ wording (Hilchot Shgagot 2:6) that this does not depend on whether the child actually committed each such transgression in practice, but that he must bring 74 ḥatat offerings for all the transgressions in the Torah (there are 36 prohibitions that entail a ḥatat—see the first Mishnah in tractate Keritot—and on Shabbat there are 39 labors, each of which entails a separate ḥatat).[3]

At first glance this is astonishing, for as we have seen, by all opinions there is no obligation of a ḥatat without an actual act. Indeed, in Mageni Shlomo (Shabbat 68b) it is written to explain that we presume that over the course of his life he violated every type of transgression at least once. Incidentally, according to this explanation there is no basis for concern in causing an atheist to sin, since we presume he has already violated it and already incurs a ḥatat for his lack of knowledge. But this is very difficult: how can one assume that every such person necessarily violated all the ḥatat-level transgressions? That is far from the typical case. Did every person eat blood or chelev? And what if he is a vegetarian?[4] Such a ruling necessarily leads to profanation of the Temple offerings.

Because of this difficulty, I argued there for a renewed reading of Maimonides. As I propose here, the obligation of the ḥatat is for the lack of knowledge itself and not for the act (the act is only a condition). For a regular shogeg, each lapse regarding a given prohibition is a separate ignorance, but for a tinok shenishba there is only one ignorance: ignorance of being obligated in mitzvot at all, and he lives his entire life under one lapse. Therefore, theoretically we would require him, for all the transgressions he committed, to bring only a single ḥatat, since only one piece of knowledge was concealed from him (similar to a case in which one detail of Shabbat was concealed and he committed several times that same transgression).[5]

In practice we rule that a tinok shenishba is liable for a ḥatat for each category of transgression. The explanation appears in Dibrot Moshe, Shabbat 68, that this lapse is considered as if he did not know all the transgressions (for they are distinct and stand independently). True, the basic knowledge that was missing is one, but in the end, because of it, all the mitzvot were concealed from him—that is, many distinct items of knowledge. By contrast, one from whom a single mitzvah was concealed and who violated it several times—that is only one item of knowledge, and therefore he is liable for only one ḥatat. Yet if indeed all these concealments have a single root, then the fact that he violated transgressions of many types renders his fundamental lapse (being obligated in mitzvot at all) something that came to practical expression; therefore, he is liable for a ḥatat on it. But that lapse is what underlies all his ignorances, including those for which he did not actually transgress. He is at fault for not knowing the entire Torah, and that lack of knowledge also came to expression in action, and therefore he is liable for each category of transgression—even those he did not commit in practice. This is, of course, a great novelty,[6] but it seems, according to this approach in Maimonides, to be compelling. In any case, if correct it further sharpens the thesis that liability for a ḥatat is for the shogeg itself and not for the transgressive acts.

That is how I suggested explaining this in my article. But one can also explain this view differently. Although liability for a ḥatat is for the shogeg and not the act, usually a practical expression of the shogeg is required to establish that the person indeed acted in error. As I explained, without that it is difficult to impose a ḥatat for not knowing something. But that is only for a regular shogeg. By contrast, a tinok shenishba is in a well-defined state of general ignorance; therefore, there is no need there for practical expression to determine that there is a lack of knowledge (a shogeg obligating a ḥatat). Hence, unlike regular shogeget, one can obligate a tinok shenishba in 74 ḥatat offerings even without his having performed the acts in practice. This explanation, too, assumes that liability for the ḥatat is for the shogeg itself.

A Parallel Argument Regarding Intentional Transgressions

The Mishnah in Makkot 21a brings the law of division for lashes:

A Nazirite who was drinking wine all day is liable only once. If they said to him, “Do not drink, do not drink,” and he drank, he is liable for each and every [drinking]. If he was becoming impure to the dead all day he is liable only once; if they said to him, “Do not become impure, do not become impure,” and he became impure, he is liable for each and every [act]. If he was shaving [his hair] all day he is liable only once; if they said to him, “Do not shave, do not shave,” and he shaved, he is liable for each and every [act]. If he was wearing kilayim (forbidden mixtures) all day he is liable only once; if they said to him, “Do not wear, do not wear,” and he removed and [again] wore, he is liable for each and every [act].

A Nazirite is forbidden to drink wine. The Torah-level prohibition of drinking is a reviʿit measure. What happens if a Nazirite drinks wine all day long? The Mishnah says he is liable for only one set of lashes. But if they warned him between each reviʿit and the next, he is liable for lashes for each drink. The same applies to impurity from the dead, shaving, or kilayim (kilayim is a general prohibition, not specific to Nazir, of course).

In several places in the Talmud we find that the discussion of division into ḥatat offerings for shogeg is very similar to the discussion of division into lashes for mezid. For liability of a ḥatat we saw that intervening awarenesses divide; similarly for liability of lashes, intervening warnings divide. The similarity is not accidental, for the Sages say, “Warning was given only in order to distinguish between shogeg and mezid” (Makkot 6b and parallels). From this it is inferred that a hater who kills, or a colleague (=a Torah scholar), does not require warning, because even without it we know he acts intentionally. Therefore, if there is a warning between drinkings, there are two intentional acts and thus two liabilities for lashes. If there is no warning, perhaps one of the actions was done unintentionally (this is the claim of “eshtalaʾi” – it slipped my mind, which is why the Rishonim explain that the warning must be within “toch kedei dibbur,” the brief moment after the act), and therefore he is not lashed. And if there is no warning at all, he is not lashed at all and everything is treated as one shogeg (what we defined as a single heʿelem) with respect to prohibitions that incur a ḥatat.

Thus, similar to ḥatat, if he drank two reviʿit measures of wine under one warning (i.e., without an additional warning between them), he incurs only one set of lashes (forty). Here, too, we can formulate all the possibilities we raised regarding the ḥatat. Beginning with the two in Afikei Yam: (1) This is a rule regarding the acts: he is lashed once because the acts combine into one act (warnings divide the acts). (2) This is a rule in the liability for lashes: once he is lashed for one act, that suffices to atone also for other acts done under the same warning (warnings divide with respect to lashes). And of course, a third possibility arises—the one I suggested above: (3) The lashes are given for the intentionality (hazadon) and not for the acts; when there is no dividing warning, there is a single hazadon.

Here this seems an even greater novelty. Regarding liability for a ḥatat in shogeg, sevara (reason) dictates that the complaint against him is not for the act but for the negligence that produced the shogeg; therefore it is reasonable that the ḥatat be for the shogeg itself. But lashes are given for intentional transgressions, and there it would appear that the transgression is the act (with the condition that it be intentional so as to incur lashes). According to proposal (3) here, however, even the punishment of lashes is not for the act but for the intention. In this case, not for the negligence of ignorance as in shogeg, but for the mezid-intent that led to the act. Each warning generates another mezid-intent and thus another liability for lashes. Of course, I am not claiming that one is lashed for mezid-intent without its practical expression in an act. My claim is that lashes are given for the mezid-intent, but there is a condition for liability for lashes—that the mezid-intent is expressed in an act. It is not reasonable to lash someone who merely thought to transgress, for that could be a passing thought. Each time the person is warned and subsequently transgresses, there is a distinct mezid-intent that came to fruition, and therefore it obligates another set of lashes.

According to this, the rule that warnings divide for lashes is straightforward and expected, exactly like awarenesses dividing for ḥatat. No contorted mechanisms are necessary: we saw that the number of ḥatat offerings equals the number of shogeget, since a ḥatat comes for the shogeg itself (and not for the act, provided there was shogeg). Likewise for the number of lashes, which equals the number of mezid-intents, since lashes are administered for mezid (and not for the act, provided there was mezid).

However, Maimonides does not seem to understand it this way. In Hilchot Nezirut 5:10 he writes:

If a Nazirite was drinking wine the entire day—even though, before Heaven, he is liable for each and every reviʿit—he receives only one [set of lashes] for “wine,” and one for “he shall not profane his word,” as we explained. And if they warned him for each and every reviʿit and said to him “Do not drink, do not drink,” and he drank, he is liable for each and every one. By rabbinic law it is forbidden for a Nazirite to sit among those who drink wine, and he must distance himself greatly, for there is a stumbling-block before him. The Sages said: ‘Do not approach the vineyard’s fence.’

And similarly there in halacha 16:

If he became impure to the dead many times—even though, before Heaven, he is liable for lashes for each and every [case]—the court does not lash him except once. But if they warned him for each and every time and he became impure, he is lashed for each and every one.

From his words at the beginning of both of these halachot it emerges that this is not a rule regarding the transgressions but regarding the lashes administered by the court. Even if he did everything under a single warning, he committed multiple transgressions and is liable, before Heaven, for multiple sets of lashes. In his view, then, the combining applies only to the court’s lashes.

In my understanding, however, the plain sense of the sugya accords more with what I have written—both by the wording of the sugya and by sevara. If there are multiple transgressions and multiple liabilities for lashes, why should they not be administered in court? It is true we find examples of liability “before Heaven” but not “by human courts,” yet absent a necessity and when the Gemara does not state otherwise, it is more reasonable to say that if he is not lashed it is because he is truly not liable for lashes. It is possible that Maimonides does not disagree: in his view, if he commits several acts under one warning it is still not very plausible that he forgot; therefore there are several mezid-intents and, before Heaven, he is liable for multiple lashes. According to this, even in his view the transgressions are the mezid-intents, only that multiple mezid-intents can occur under one warning. For lashes in the earthly court there must be a clear mezid-intent; thus a separate warning is required.

The Link Between Division for Ḥatat and Division for Lashes

Indeed, in several places we see that the Gemara itself links the rule of division for ḥatat in shogeg to the rule of division for lashes in mezid. Under the first two possibilities above that link is far from necessary; but under my proposal the connection is natural: just as a ḥatat comes for shogeg, lashes come for mezid-intent, and therefore, just as the number of concealments (shogeget) determines the number of ḥatat offerings, so the number of warnings (mezid-intents) determines the number of sets of lashes. This reflects a principled conception that halakhic criminality is determined by thought, not by act.

One place we see such a connection is the Ran cited above (Nedarim 17) brought in Afikei Yam §5. The Ran does not distinguish between multiple eatings with respect to liability for a ḥatat and multiple eatings with respect to lashes; and he cites likewise from the Ritva in the sugya in Makkot. But there is also a clear example of this in the Talmud itself, as seen in the sugya in Chullin 82.

There, in the Mishnah (82a), we find a dispute of the Tannaim:

If one slaughtered [a mother animal] and [also] the “daughter of its daughter,” and afterwards slaughtered its [direct] daughter, he receives forty [lashes]. Symmachus says in the name of R. Meir: he receives eighty.

According to Symmachus he receives eighty because there are two pairs of “slaughtering a mother and its daughter on one day,” even though he did so in one act. And in the Gemara there (82b):

“He slaughtered [the mother] and the daughter of its daughter [etc.]”—Abaye said to Rav Yosef: What is Symmachus’ reason? Symmachus holds: one who ate two olive-bulks of chelev under one lapse of awareness is liable for two ḥatat offerings…

The Gemara explicitly connects liability for eighty lashes to liability for two ḥatat offerings. The entire ensuing sugya in Chullin continues to assume this linkage. And Afikei Yam there questions this:

What remains difficult here is: what connection is there between two olive-bulks of chelev with respect to liability for ḥatat and liabilities for lashes in prohibitions of negative commandments, such that the Gemara ties one to the other? Especially according to the second approach we wrote above—that the reason in the case of two olive-bulks of chelev is a scriptural decree that one is exempted with an offering that comes also for its counterpart which was with it in one concealment (as Rashi writes here, calling it “dragging” [gerirah])—this reasoning has no application at all in negative commandments regarding lashes.

He brings this as proof for his view (possibility 1 above) that the combination renders the two actions into one act. In my opinion, however, even under that view the difficulty remains. Why assume that the combination of one lapse for ḥatat operates exactly like the combination of one warning for lashes? Why is the claim that without a warning two intentional acts are counted as one equivalent to the claim that under one concealment two unintentional acts are one? If someone vowed to become a Nazirite upon eating something, and he ate it unintentionally under one concealment, would he incur only one Nazirite status because there was only one eating? There is no necessity for that—and in any case it does not seem to depend on whether, for mezid, when there were no warnings this is one eating.

Under possibility (3) that I proposed above, however, this is self-evident: we are dealing with a principled halakhic conception in which the grounds for punishment are intentions and not actions, and this is true for both shogeg and mezid. Therefore, one must count the number of grounds in both shogeg and mezid to establish the number of liabilities. Consequently, the warning plays the same role as the emergence into awareness, for warnings determine the number of mezid-intents just as awarenesses determine the number of concealments.

Back to the Sugya of “A Transgression for Its Own Sake”

I mentioned above the sugya of “a transgression for its own sake” in tractate Nazir. The Mishnah (Nazir 23b) teaches:

A woman vowed to be a Nazirite and was drinking wine and becoming impure to the dead—she receives forty lashes. If her husband annulled it and she did not know that her husband had annulled it and she was drinking wine and becoming impure to the dead—she does not receive forty lashes. R. Yehudah says: If she does not receive the forty, she receives disciplinary lashes (makkat mardut).

The woman intended to violate the vow, unaware that her husband had annulled it. In practice she had criminal intent but there was no act of prohibition. The Mishnah says she does not receive lashes, since there was no prohibited act. This by itself does not say much, for even according to my proposal that the punishment is for the intention (the mezid-intent), it remains clear that without an act there are no lashes.

The Gemara there brings the well-known baraita:

“Her husband has annulled them, and the Lord shall forgive her”—Scripture speaks of a woman whose husband annulled [her vows] and she did not know, that she requires atonement and forgiveness. When R. Akiva would reach this verse he would weep: If one who intended to take in his hand pork and he took in his hand lamb requires atonement and forgiveness—one who intended to take in his hand pork and he took in his hand pork, how much more so!

R. Akiva makes a kal va-ḥomer from a case of intent (mezid-intent) without an act to a case of intent with an act. On the surface, the Gemara means to say that only the act is the transgression, but it wishes to innovate that intent too has weight. Yet on such a reading the kal va-ḥomer is strange: what point is there in arguing from a case where there is no transgression at all but only a desire to transgress, to a case where there is a transgression?! Of course the second case requires atonement. Does one need to prove that from a case with no transgression?

By comparison, the continuation of the baraita brings a similar kal va-ḥomer:

Likewise you say: “Though he did not know, he is guilty and shall bear his iniquity” — If one intended to take lamb and took pork (e.g., a piece that was a doubt: fat or chelev), Scripture says “he shall bear his iniquity.” One who intended to take pork and took pork—how much more so.

Here the kal va-ḥomer is entirely reasonable. In both cases there is a transgressive act, and we wish to prove from the kal va-ḥomer that although in the act alone there is a transgression, the accompanying intent adds weight (to negate the initial premise that intent has no significance). But the first part’s kal va-ḥomer is puzzling.

It is no wonder that the Griz (R. Yitzchak Zev Soloveitchik) in his mimeographed notes there writes:

[d] In the Gemara: “Her husband annulled them, and the Lord shall forgive her…,” and the simple reading implies that we learn from “and the Lord shall forgive her” that she requires atonement for having intended to eat pork, etc. Yet Maimonides (Hilchot Nedarim 12:18) writes: “If she vowed and her father or husband annulled it and she did not know of the annulment and she violated her vow or oath intentionally—she is exempt; and even though she intended an act of prohibition, since a permissive state was created, she is exempt, and for this it is said, ‘and the Lord shall forgive her, for her father restrained her.’ But they administer disciplinary lashes to her for having intended an act of prohibition.” From his words it seems that without the verse we would have thought that she is liable to lashes because she intended a prohibition; and we must say that in the case of one who intended to eat pork and it turned out to be lamb there is here an act of prohibition, only that we learn from the verse that there is no liability of lashes. Thus it is also clear why R. Yehudah says: If she does not receive the forty, she receives disciplinary lashes—since there is an act of prohibition, even if the scriptural decree exempts from lashes, she should receive disciplinary lashes, for an act of prohibition exists here. Accordingly, the need for atonement and forgiveness is not only for the thought of doing a prohibition but because there is truly an act of prohibition, even though it was lamb; only that we learn from the verse exemption from lashes. Hence it is understandable that where she merely thought to eat something forbidden—i.e., not this case where she intended pork and took lamb—she does not need atonement; for the need for atonement is not for the thought to do a prohibition, but because this is truly called an act of prohibition, even though it was lamb, only that we learn from the verse exemption from lashes. And so it is explained in Sifrei Zuta, Parashat Mattot, that we learn from “and the Lord shall forgive her” exemption from lashes; and according to Maimonides, R. Yehudah does not disagree with the Sages but explains that for disciplinary lashes there is no exemption. [And so writes the Kesef Mishneh there.]

He explains that the thought to eat pork is itself a Torah-level prohibition of eating pork, only that by a scriptural decree we do not administer lashes without actual eating. I stress: his intent is not that every thought to eat pork is a negative commandment; only in a case like ours, where the thought was carried out in an act but the act turns out, retrospectively, to have been permitted, there is a Torah prohibition. The reason is that on the part of the transgressor, everything that needed to be done to perform a Torah prohibition was done; only a side factor prevented realization. In such a case there is a Torah transgression for which, in principle, lashes would be appropriate, were it not for a scriptural decree.

The Griz clearly assumes that the transgression that obligates lashes is the intent (mezid-intent), and the need for an act is only a scriptural decree in the laws of lashes. But the thought alone (that was implemented in action) is a transgression in every respect. I have always wondered at his words, for the plain sense of the Gemara here is that atonement is required but this is not a full transgression. In light of what we have seen in this column, however, his words are crystal clear: indeed, a Torah transgression is defined by mezid-intent rather than the act.

This also resolves the kal va-ḥomer that R. Akiva makes from “he intended to eat pork and it turned out to be lamb” to “he intended to eat pork and it turned out to be pork”: according to the Griz, in both cases there is a Torah-level transgression of evil intent that was implemented in an act; the only difference is whether a side factor ultimately prevented the result or not. These are indeed two degrees of a Torah transgression and not “a bad act” versus “a transgression,” and therefore a kal va-ḥomer is apt.

Now both kal va-ḥomer arguments in the baraita are well parsed. The first is between a mezid-intent transgression that did not materialize and a mezid-intent transgression that did materialize. These are indeed two levels of severity within a Torah-level mezid transgression (for an intentional transgression is the mezid-intent, not the act). The second is between a good intent that turned out badly (shogeg, which is the transgression of negligence for lack of knowledge) and a bad intent that turned out badly (mezid-intent that materialized). That is a kal va-ḥomer between two levels of criminal intent: negligence versus mezid. In both cases it is a comparison between two transgressions, lighter and more severe, and therefore a kal va-ḥomer can be made between them.

As I noted at the outset, so dictates reason as well. There is no logic in pegging a person’s criminality to whether the result happened to materialize. As long as the person did everything he needed to do with the intention to transgress (e.g., attempted murder), he is fully wicked, even if in the end it turned out he was clumsy and his intention did not come to fruition. Clumsiness does not neutralize wickedness. This means that on the substantive level the transgression is the mezid-intent and not the act. The realization in action is only a condition.

Summary: Intention and Its Realization

We have seen that a Torah transgression is defined by mezid-intent rather than by the act. True, an intention to transgress without realization is not a transgression, for actual performance is a condition in defining the transgression. One who merely contemplated eating pork certainly did not commit a Torah transgression and does not even require atonement. Without realization there is no mezid-intent. But even where the criminal intent (mezid-intent) is realized, we distinguished two different levels:

1. Realization in an act aimed at achieving the result (but the result was not achieved)—such as when he ate something he thought was pork though it was lamb. Attempted murder is a transgression of murder, unlike the mere thought to murder that led to no action (a mere intention to murder).
2. Realization in fact (he actually ate pork).

In case (1) the condition for a Torah-level transgression is met, but there are no lashes. Only in case (2) are lashes also administered.

[1] For the purposes of this discussion I am ignoring my fundamental thesis there that a secular Jew is not situated within the framework of mitzvot and transgressions at all. Here I treat him as a kind of shogeg (like a tinok shenishba who, in halakhah, is treated as shogeg).

[2] Even according to his view, at least under the first possibility, there is room to discuss whether this counts as causing him to stumble, since the acts of a tinok shenishba are all done under one continuing lapse and are considered a single act. That depends on whether, when one eats two olive-bulks of chelev in one act, according to Afikei Yam this constitutes two transgressions that carry one punishment, or a single transgression.

[3] I do not think this inference is compelling; in fact, in my opinion it is not the straightforward reading of Maimonides. I cite this view only to sharpen my proposal regarding liability for a ḥatat. Hence this section is not presented as an indication from the Rishonim, but as a practical implication of the thesis itself.

[4] Indeed, in the book Shabbat Shel Mi, Shabbat there, s.v. “In Tosafot s.v. ‘ve-ḥayyav,’” he cites the Mageni Shlomo and rejects his words.

[5] See Shabbat Shel Mi there, who cites this in the name of Mageni Shlomo and agrees with him in this matter. In my article I also cited Dibrot Moshe there, who wrote likewise.

[6] There is room to tie this novelty to the commentators’ approaches in the sugya of “gerirah” (dragging), Shabbat 70b; this is not the place to elaborate.