Lesson 9: Vayera

From the book Mida Tova: Articles on the Principles of Halakhic Thinking by Rabbi Michael Avraham. Translated from Hebrew using gpt-5.4 (reasoning_effort=high, batch API).

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With God’s help

Concepts

• A transgression for the sake of Heaven.
• A scale of values.
• Incommensurability (the absence of a common measure) of values.
• Extra-halakhic obligations.

Summary

In this article, we begin with the act of Lot’s daughters with their father and use it to discuss the issue of a transgression for the sake of Heaven. This topic touches the roots of the definition of halakhic obligation, and indeed the definition of the term halakha (Jewish law) as such. The question is whether there can be obligations outside halakha, or whether halakha comprises the totality of the Torah’s norms. We present several approaches to a transgression for the sake of Heaven: from viewing it as a complete prohibition that nonetheless carries a small measure of reward, through seeing it as a permitted act, or as a non-obligatory mitzvah (commandment), and even as a positive obligation.

We shall see that intention is an essential condition of a transgression for the sake of Heaven, as are its singular and exceptional character. Therefore rabbinic enactments cannot fall under this category, nor can any fixed or regular mode of conduct. We will examine several problems involved in drawing the line and defining the scope of this problematic notion, as well as the inherent difficulty that accompanies decisions between different systems of values—halakha and extra-halakhic systems—a difficulty that also appears in moral philosophy.

The Rules and Principles that Emerge from the Article

1. Regarding a Transgression for the Sake of Heaven

A Look at the Nature and Scope of Halakhic Obligation

A. General Introduction

Introduction

In our Torah portion, Scripture describes the flight of Lot and his two daughters from the overturned city of Sodom (Genesis 19:24-38):

Then the Lord rained upon Sodom and upon Gomorrah sulfur and fire from the Lord out of heaven. And He overthrew those cities, and all the plain, and all the inhabitants of the cities, and what grew upon the ground. But his wife looked back from behind him, and she became a pillar of salt. Abraham rose early in the morning to the place where he had stood before the Lord. And he looked down toward Sodom and Gomorrah and toward all the land of the plain, and saw that the smoke of the land rose like the smoke of a furnace. And it came to pass, when God destroyed the cities of the plain, that God remembered Abraham and sent Lot out of the midst of the overthrow, when He overthrew the cities in which Lot had dwelt. Lot went up out of Zoar and settled in the mountain, and his two daughters with him, for he was afraid to dwell in Zoar; and he dwelt in a cave, he and his two daughters. The elder said to the younger: Our father is old, and there is not a man in the land to come to us in the way of all the earth. Come, let us give our father wine to drink, and let us lie with him, that we may preserve seed from our father. They gave their father wine to drink that night, and the elder went in and lay with her father; and he did not know when she lay down or when she arose. On the morrow the elder said to the younger: Behold, I lay last night with my father. Let us give him wine to drink this night also, and go in and lie with him, that we may preserve seed from our father. They gave their father wine to drink that night also, and the younger arose and lay with him; and he did not know when she lay down or when she arose. Thus both the daughters of Lot conceived by their father. The elder bore a son and called his name Moab; he is the father of Moab to this day. The younger also bore a son and called his name Ben-Ammi; he is the father of the children of Ammon to this day.

Lot leaves behind him total destruction, and during the flight his wife also dies. He remains in the cave with his two daughters, and there they decide to do what they did. Why, in fact, did Lot’s daughters make this troubling decision? Is this simply wickedness and pure criminality? Clearly not. It seems that Lot’s daughters thought that the entire world had been destroyed, and that only they and their father were left alive in the world—”there is not a man in the land to come to us in the way of all the earth.” Rashi indeed writes on verse 31, and other commentators write similarly:

“Our father is old”—and if not now, when? Perhaps he will die or cease to beget children. “And there is not a man in the land”—they thought that the whole world had been destroyed, as in the generation of the Flood.

In such a situation there is no simple dilemma. Should one preserve the laws of halakha and morality, and thereby bring human history to its end? Or should one preserve human existence at the price of a very troubling act? They decided that the value of human survival overrides the prohibition of incest; they gave their father wine to drink and caused him to have relations with them in the ordinary human way. Thus Ammon and Moab were born, and their very names express this act—more bluntly in the case of Moab. We will later note the attention that the Sages paid to this distinction.

The Problematic Nature of the Matter

When we come to examine the deeds of Lot’s daughters, we must ask ourselves several difficult questions. But at the basis of the inquiry we must try to step into their shoes—that is, to try to see the picture as it stood before them. It is very easy to say that they committed incest, one of the Torah’s three gravest prohibitions. But what would we have done in their place? If the continued existence of all humanity depended on such a transgression, would it not have been right to do it? At the very least, should we not understand their motives rather than immediately classifying them as criminals?

In the next section we will discuss a halakhic example from a different area, which will somewhat illustrate this kind of reasoning.

Example: “One Does Not Tell a Person: Sin So That Your Fellow May Benefit”

There is a halakhic rule that appears in several places in rabbinic literature: “One does not tell a person: sin so that your fellow may benefit.” A person is not supposed to act against halakha so that another person will gain. The Gemara discusses this in Babylonian Talmud, Shabbat 4a, and says:

To return to the matter itself: Rav Bibi bar Abaye raised a question: If one stuck dough to the oven wall, did they permit him to remove it before he becomes liable to bring a sin-offering, or did they not permit him? Rav Aha bar Abaye said to Ravina: What are the circumstances? If you say that he did it inadvertently and did not remember, then to whom was this permission granted? But if you mean that he later remembered, would he then be liable? Have we not learned: All those liable to bring sin-offerings are not liable unless the beginning was inadvertent and the end was inadvertent. Rather, if it was done intentionally, the question should have been: before he comes to incur liability to stoning. Rav Sheila said: Actually, it was inadvertent, and to whom was the permission granted? To others. Rav Sheshet objected: Do we tell a person, “Sin so that your fellow may benefit”? Rather, Rav Ashi said: Actually, it was intentional, and say: before he comes to incur liability to stoning. Rav Aha son of Rava taught this explicitly: Rav Bibi bar Abaye said: If one stuck dough to the oven wall, they permitted him to remove it before he comes to incur liability to stoning.

A person stuck bread dough to the oven wall, and if it remains there he will violate the prohibition of baking on Shabbat, whose punishment is stoning.¹ The Gemara clarifies the case and reaches an initial conclusion: the act was intentional, and the permission is granted so that he not come to liability to stoning. Already here there is an assumption that the person himself may now commit a lighter prohibition—removing the bread from the oven on Shabbat—in order to save himself from liability to stoning.

Even at this point, however, we must ask whether the permission is to commit a lighter prohibition so as not to commit a graver one, or whether it is to commit a lighter prohibition in order to avoid the punishment of stoning. In fact, there are at least three possible understandings here:

1. The first understanding arises from a relative weighing of a lighter prohibition against a graver one. He is permitted to violate a lighter prohibition in order to escape a graver one. At first glance this permission seems straightforward, and that understanding therefore suggests itself. The problem, however, is that the graver prohibition has already been committed, and now we are permitting him, from the outset, to violate a lighter prohibition in order to prevent the graver result-prohibition from taking full effect. Ordinarily halakha does not operate this way; see, for example, Tosafot, s.v. “Ein omrin,” there, and elsewhere.
2. One might therefore understand it differently: perhaps this permission rests on the consideration of pikuach nefesh (saving life). A person may desecrate Shabbat in order to save his life, for saving life overrides Shabbat. But this understanding is also problematic. Here he himself brought about the life-threatening situation, and especially because the threat to his life comes from the Torah’s command to the beit din (rabbinical court) to execute him. Would we permit a person to desecrate Shabbat in order to escape prison while awaiting the carrying out of a death sentence lawfully imposed by a beit din? Or would we permit him to kill the court’s emissary on the ground that he is a lethal pursuer?
3. One can therefore propose a third possibility: the permission to violate the lighter prohibition is granted because it allows him to remain alive, but not by virtue of the ordinary laws of saving life. We permit him to remove the bread because this saves him from the punishment of stoning. One may say that we take account of the state of a person who sees a death sentence about to be imposed on him, and we allow him to take a forbidden action in order to save himself. Perhaps there is here a consideration similar to an enactment that the public cannot uphold, since removing bread from the oven is a rabbinic prohibition—the Gemara there says that removing bread is a skill, not a labor, that is, it is prohibited only by decree. It stands to reason that a person could not be expected to endure such a decree. Therefore the Sages never enacted their prohibition in a case where a person could not possibly uphold the decree and would thereby abandon himself to death.² We see here a consideration for an exceptional situation, by virtue of which a person is permitted to commit a transgression. But this applies only to a rabbinic prohibition, and perhaps in this case the Sages never enacted the prohibition of removing bread at all.

The Gemara then rejects the possibility that the act was intentional. True, it does so on linguistic grounds, and perhaps the principle derived from the passage nonetheless remains valid in practice. In the end, Rabbi Sheila suggests that the case is one of inadvertence, and the person himself does not even know that the bread should be removed. In such a case others were permitted to remove it in order to save him from transgression and punishment.³ Rav Sheshet immediately objects: how can we tell a person to sin so that his fellow may benefit?

This principle appears without an explicit source, and it seems to rest on pure reasoning, but it appears to be an accepted principle without dissent. In other words, according to halakha, a person may not sin himself in order to save his fellow from transgression. That possibility is therefore rejected, and the Gemara returns to Rav Bibi bar Abaye’s first formulation.

In Tosafot, s.v. “Ve-khi omrim,” there, it is stated that sometimes a person is permitted to commit a light prohibition in order that his fellow be saved from a grave prohibition.⁴ Other early authorities wrote similarly, on the basis of Babylonian Talmud, Eruvin 32b and elsewhere. The same passage also allows one to transgress in order to enable a mitzvah for the public, or an especially important mitzvah; see Tosafot there regarding the freeing of a slave.

We thus see that there is room for discretion regarding situations in which transgressions may be committed. We also see that these considerations are made without explicit textual sources, but on the basis of reasoning alone. The conclusion, then, is that when the “price” is very high, there are situations in which it is legitimate, and perhaps even desirable, to commit transgressions. The situation of Lot’s daughters was certainly an extreme one, and therefore there may be room to view their act positively, or at least with understanding.

The Attitude of the Sages toward the Act of Lot’s Daughters

Nahmanides, in his commentary on the passage, writes as follows on verse 32:

“That we may preserve seed from our father”—perhaps they said: Let us do what is fitting for us; perhaps God will have mercy and we will bear a male and a female, and the world will continue from them, for “the world is built on kindness” (Psalms 89:3), and the Lord did not save us for nothing. They were modest and did not wish to tell their father to marry them, for a Noahide is permitted to his daughter (Babylonian Talmud, Sanhedrin 58b). Or perhaps the matter was regarded as extremely disgraceful in those generations and had never been done, and therefore our Rabbis in the aggadic traditions strongly censure Lot (Babylonian Talmud, Nazir 23a).

Is there here an unequivocal condemnation of the act? A look at the sugya in Babylonian Talmud, Nazir 23b—see also the parallel in Horayot 10b—shows that there is not:

Rabbi Hiyya bar Avin said in the name of Rabbi Yehoshua ben Korha: A person should always be first in performing a mitzvah, for as a reward for the one night on which the elder preceded the younger, she merited that her line preceded the younger’s by four generations in Israel’s monarchy.

Thus, the deeds of Lot’s daughters are called acts of mitzvah by the Sages. The condemnation is directed only at Lot himself, because he intended transgression; for the explanation, see the sugya there:

Rabbah bar bar Hanna said in the name of Rabbi Yohanan: What is the meaning of the verse, “For the ways of the Lord are upright; the righteous walk in them, and transgressors stumble in them” (Hosea 14:10)? … This may be illustrated by Lot and his two daughters: they intended their act for the sake of a mitzvah, and therefore “the righteous walk in them”; he intended it for the sake of transgression, and therefore “transgressors stumble in them.” …

Indeed, we find that Ammon and Moab receive special treatment, both negatively and positively. On the one hand, because of the father’s transgression, they are forbidden to enter the congregation:

“An Ammonite or a Moabite shall not enter the congregation of the Lord” (Deuteronomy 23:4). Rava, and some say Rabbi Yitzhak, expounded: What is the meaning of the verse, “He who separates himself seeks desire; he breaks out against all sound wisdom” (Proverbs 18:1)? “He who separates himself seeks desire”—this is Lot. “He breaks out against all sound wisdom”—his disgrace was exposed in synagogues and study halls, for we learned: Ammonites and Moabites are forbidden, and their prohibition is permanent.

On the other hand, by virtue of the mitzvah of the daughters, it is forbidden to provoke them to war—more so in the case of Ammon than of Moab:

Rabbi Hiyya bar Abba said in the name of Rabbi Yohanan: From where do we know that the Holy One, blessed be He, does not withhold reward even for refined speech? Because the elder called him Moab, the Merciful One said to Israel: “Do not harass Moab, and do not provoke them to war” (Deuteronomy 2:9)—war is forbidden, but lesser harassment is permitted. But because the younger called him Ben-Ammi, He said: “Do not harass them, and do not provoke them” (Deuteronomy 2:19)—even lesser harassment is entirely forbidden.

Thus, the act of Lot’s daughters is considered by the Sages to be a mitzvah. Lot himself, by contrast, who performed his act—at least on the second night—intentionally, is considered a transgressor.

Why is Lot more culpable than his daughters, who also knew the nature of the act—indeed, they initiated it? The reason is probably that Lot, unlike his daughters, knew that the world had not been destroyed. He knew that the angels had been sent to destroy the corrupt cities of the plain, not the whole world. Therefore the very same act is counted for him as a transgression.⁵

B. A Transgression for the Sake of Heaven

Introduction

In halakhic terminology, a situation in which we are forced to commit a transgression for the sake of a positive goal is called “a transgression for the sake of Heaven.” That is, the transgression is not committed in order to violate the will of God, but in order to attain a goal that is good in itself. On the other hand, it is reasonable to assume that halakha does not recognize the legitimacy of the transgressive act as such, for if it did, it would not be a transgression at all. To desecrate Shabbat in order to save lives does not seem to be a transgression for the sake of Heaven; on the contrary, it is a mitzvah that halakha requires one to perform.

If so, a transgression for the sake of Heaven points to a halakhic tension. On the one hand, on the formal halakhic plane there is a transgression here. On the other hand, on the value plane—the meta-halakhic plane—there is a positive act here, perhaps even a necessary one. Can such an act be legitimate? We cannot attempt here even a full outline of this topic, so we will only touch it from several principal angles. To do so, we will examine a few halakhic sources, beginning with the foundational sugya in Babylonian Talmud, Nazir 23b.

“A Transgression for the Sake of Heaven”: The Nazir 23b Discussion

It is noteworthy that this very sugya, earlier on 23a, deals with Lot and his daughters, as cited above. In the course of its discussion, the Gemara turns to the issue of a transgression for the sake of Heaven:

Rav Nahman bar Yitzhak said: A transgression committed for the sake of Heaven is greater than a mitzvah performed not for its own sake. But did Rav Yehudah not say in the name of Rav: A person should always occupy himself with Torah and mitzvot even not for their own sake, for from doing them not for their own sake he will come to do them for their own sake? Rather, say: A transgression for the sake of Heaven is like a mitzvah not performed for its own sake, as it is written: “Blessed above women shall Jael the wife of Heber the Kenite be; blessed shall she be above women in the tent” (Judges 5:24). Who are the women in the tent? Sarah, Rebecca, Rachel, and Leah. Rabbi Yohanan said: That wicked man had intercourse with her seven times at that time, as it is said: “At her feet he sank, he fell, he lay…” …

Although the sugya makes no explicit connection to the acts of Lot’s daughters, it is hard to avoid the obvious link: the act of Lot’s daughters was a transgression for the sake of Heaven.⁶ The sugya gives as another example the act of Jael, wife of Heber the Kenite, who had relations with Sisera in order to kill him. A little later it gives a similar evaluation of Tamar’s act:

Ulla said: Tamar committed harlotry, and 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.

An Important Note

It should be noted that a large number of commentators explain the sugya in such a way that it does not speak of an actual transgression.⁷ It seems quite clear that the reason for this is not necessarily exegetical, but rather an a priori assumption: halakha cannot acknowledge the legitimacy of transgressions, even if they are committed for the sake of Heaven.

Rabbi Yehoshua Ibn Shuaib, however, writes in his homiletical discourses as follows:⁸

Therefore a person who is truly a person uses this in matters necessary for the world, as the Sages said: “In all your ways know Him”—even with regard to transgression; that is, in eating … which are matters that may lead to transgressions, one should direct them for the sake of Heaven. And some explain that this means even an actual transgression, if one’s intention is for the sake of Heaven, as they said: “A transgression for the sake of Heaven is greater …” and as in the matter of Jael.

Other commentators explained the sugya similarly, and this also seems to emerge clearly from the plain sense of the Gemara. Below we will address the difficulty raised by the commentators just mentioned, but first we will suggest a description of the course of the sugya and a possible explanation of it.

The Course of the Sugya

The Gemara opens with a principled statement that a transgression for the sake of Heaven is greater than a mitzvah not performed for its own sake. At first glance, the simple assumption is that such an act is permitted, and the statement concerns only its value. Rav Nahman bar Yitzhak determines that such an act is more important than a mitzvah performed without proper intention. What, then, is its relation to a mitzvah performed with proper intention? It would seem that such a mitzvah is more important. Would we say something similar about desecrating Shabbat in order to save life? There we would presumably say that it is as great as a mitzvah performed with proper intention; indeed, the act itself is such a mitzvah. This would appear to prove that a transgression for the sake of Heaven is not merely another name for an ordinary halakhic override, but for an actual transgression.

The Gemara then objects from the instruction that one should engage in Torah and mitzvot even when not done for their own sake, since in that way one will eventually come to do them for their own sake. But what exactly is the objection? What in Rav Nahman bar Yitzhak’s statement contradicts that instruction? From this objection it seems that the Gemara understood Rav Nahman bar Yitzhak’s statement as a claim about a mitzvah not done for its own sake, and not as a claim about a transgression for the sake of Heaven. The statement is thus read as a rebuke to one who performs mitzvot not for their own sake, and against this the Gemara adduces proof that even a mitzvah not done for its own sake is still a mitzvah, and there is certainly value in doing it. It therefore asks: how can a transgression—even if it is committed for the sake of Heaven—be greater than a mitzvah?

The conclusion is that a transgression for the sake of Heaven is not greater than a mitzvah not performed for its own sake, but like it. True, the examples brought—the statement that Jael is to be blessed more than the four matriarchs—would seem to indicate that a transgression for the sake of Heaven is greater. Perhaps, however, the Gemara’s intent is not to establish a ranking of values, but only to correct its initial assumption: Rav Nahman bar Yitzhak’s statement is not meant to say that a mitzvah not performed for its own sake is problematic and should not be done, as the Gemara initially thought, but rather that a transgression for the sake of Heaven is good and right, and should be done. It therefore brings the example of Jael and her comparison to the matriarchs in order to say that this is a blessed action, and one who does it resembles the matriarchs.

Indeed, Rashi on the Nazir passage, and even more explicitly on Babylonian Talmud, Horayot 10b, writes this explicitly:

Since it says that a transgression for the sake of Heaven is greater than a mitzvah not performed for its own sake, it follows that a mitzvah not performed for its own sake is deficient; but Rav Yehudah said, etc.

True, Rashi there, and also Tosafot, s.v. “Ve-ha Esther,” Babylonian Talmud, Sanhedrin 74b, and in the parallel in Yevamot 103a, explain the comparison to the matriarchs by saying that the matriarchs, too, performed mitzvot not for their own sake.

Note: A Mitzvah Not Performed for Its Own Sake

The dictum quoted by the Gemara treats a mitzvah not performed for its own sake as having instrumental value: it is worthwhile to perform it because through it one comes to perform mitzvot for their own sake. But the content of the Gemara suggests that such a mitzvah has independent value. A mitzvah not performed for its own sake is still a mitzvah.

Moreover, if it really had only instrumental value, why compare a transgression for the sake of Heaven to a mitzvah not performed for its own sake? Does a transgression for the sake of Heaven also lead to positive results?⁸ Why does the Gemara not say so explicitly? It seems that the intent is to say that a transgression for the sake of Heaven has intrinsic value, just as a mitzvah not performed for its own sake does. Perhaps there is here a comparison between two components of religious action: intention and deed. Intention without deed—that is, a transgression for the sake of Heaven—is like deed without intention—that is, a mitzvah not performed for its own sake. In other words, each of these two components has value in itself, and not only their conjunction, which is the optimal form of performance.⁹

Even so, one might still say that a transgression for the sake of Heaven has value, and is not like an ordinary transgression, but that there is still no recommendation to do it. Better than that would be not to transgress at all, and below it will indeed seem that this may be the case. Yet from the course of the Gemara and from the considerations we raised above, it appears that a transgression for the sake of Heaven is a positive act, and not merely something preferable relative to a transgression done without such intention.

The Methodological Problem

Our conclusion, then, is that there is intrinsic value in committing a transgression for the sake of Heaven. Not only is it relatively preferable to ordinary transgressions—that is, not only does intention carry weight alongside deed—but such an act is positive in an absolute sense. This determination raises several serious difficulties.

Can halakha grant legitimacy to such an act? Is halakha even the proper sphere in which this discussion should take place? If halakha really permits such a thing, then we seemingly return to the example of saving life on Shabbat discussed above. That is not a transgression for the sake of Heaven, but the fulfillment of a mitzvah, or at least the fulfillment of halakha’s instructions. But if halakha does not permit it, why would it grant it legitimacy?

Because of this difficulty, some commentators emptied the concept of “a transgression for the sake of Heaven” of its content. They turned it into an internal halakhic term, perhaps suitable for situations such as saving life on Shabbat. But as we have seen, the plain sense of the sugya does not indicate this. The straightforward reading of the sugyot suggests that this is a different situation, extra-halakhic in its essence. If so, then the methodological difficulty described in the previous paragraph returns in full force.

At first glance, two principled conceptions may be proposed here:

1. The true sphere of the discussion is not halakha but Torah, in a broader sense. From the standpoint of halakha there is indeed a transgression here, but from the standpoint of Torah it is a positive act. A person who serves God is supposed to act in accordance with the Torah’s directives, of which halakha is only one part. There is therefore a conflict here between the halakhic consideration and a broader Torah-value consideration.¹⁰

What should we do in such a situation? One might say that in such a case halakha yields before Torah, and therefore a transgression for the sake of Heaven is great. But one might also say that we can remain within the conflict and say that there is no clear answer. The statement that a transgression for the sake of Heaven is great does not mean that this is necessarily what one ought to do, but only that there is room for it—that one should not necessarily determine that the act was wrong.

The problem with this approach is conceptual. Usually we regard halakha as the normative totality of the Torah. Whatever lies beyond halakha belongs not to the normative dimension but to other parts of Torah. But from this it would follow that halakha does not contain even the whole normative part of Torah—that there are normative directives of Torah that are not included in halakha.

2. The sphere of the discussion is indeed halakha, but not everything that halakha forbids stands on the same footing. There are actions that halakha forbids and that count as transgressions. But there are also actions that are not right from a halakhic standpoint and yet are legitimate.

By way of analogy, consider the distinction between different dissenting positions within halakha itself. Some positions are illegitimate—a ruling like the School of Shammai against the School of Hillel is not a valid teaching, and certainly this is so of positions opposed to settled halakha. By contrast, some positions, though not accepted in practice, are positions on which their proponents can rely. Positions of the first kind are simply wrong, whereas positions of the second kind are wrong but legitimate.

The Problems Bound Up with the Concept of “A Transgression for the Sake of Heaven”

Beyond the conceptual difficulties described above, such a normative determination also raises several substantive problems:

1. The first problem is the problem of boundaries. How should we classify the halakhic status of wrong positions, that is, positions that require actions forbidden by halakha? At first glance, anything contrary to halakha is a prohibition. Here, however, we see acts that are contrary to halakha yet do not count as prohibitions.

We are familiar with intermediate halakhic statuses—for example, acting beyond the letter of the law, acting so as to discharge one’s obligation before Heaven, acts of piety, and the like. But all of these are positive acts that halakha does not obligate us to perform. One who performs them has not fulfilled halakha, even though he has done something positive. It therefore goes without saying that if they directly contradict halakha—that is, if halakha forbids them, not merely refrains from requiring them—they yield to it. Our duty to perform them exists only where there is no halakhic impediment to doing so.

We are also familiar with concepts such as “a scoundrel within the bounds of the Torah”—see Nahmanides at the beginning of the portion of Kedoshim and elsewhere—which likewise have an intermediate status. These are acts that do not violate halakha, but are nonetheless undesirable before the Holy One, blessed be He: technically permitted, but morally repellent. But such acts, too, are difficult to evaluate when they stand in opposition to halakha. It is not plausible to say that we would nullify a positive commandment because it involves something technically permitted but morally foul. Such norms are extra-halakhic in character, and as such they cannot override commandments and prohibitions.

By contrast, in our case there is an intermediate halakhic status that is not a mitzvah, but neither is it neutral. It is an obligation whose legitimacy halakha recognizes, and above all: it can be performed even when it contradicts a halakhic value—that is, when it involves a prohibition.

It is important to emphasize that we cannot classify the status of such actions by means of halakhic tools, because by definition halakha forbids them. If the positive value by virtue of which these transgressions are “for the sake of Heaven” were itself a halakhic value, then clearly we would be dealing either with a “mitzvah that comes through a transgression,” or alternatively with a case in which a positive commandment overrides a negative prohibition.¹¹ One could in fact ask: why is a transgression for the sake of Heaven not simply a mitzvah that comes through a transgression? Seemingly, this is proof that the “for the sake of Heaven” in such a transgression does not arise from any mitzvah or halakhic value.

In any event, this problem exists only according to the second approach described above. According to the first approach, one may assume that Torah, as a category broader than halakha, has tools to evaluate the status of wrong extra-halakhic positions.

2. The second problem is the problem of decision. How can we decide a conflict between halakha and extra-halakhic norms? What tools can we use when halakha itself is under discussion? Clearly these cannot be halakhic tools, for we are discussing a sugya that weighs the status of halakha itself, and therefore it must be conducted by means of some objective tools. If we use halakhic tools, the answer will trivially be that an act of transgression for the sake of Heaven is forbidden.

This problem characterizes the first approach specifically. If the discussion really takes place within Torah and not within the narrower framework of halakha, then the difficult problem arises of comparing two different normative systems. By contrast, if the discussion is halakhic, then the tools of decision are the halakhic tools.

A Scale of Values

In fact, this is a problem of constructing a scale of values. Every person has a basic system of values, and that system usually contains several values, not only one. Conflicts can therefore arise in which two values clash with one another. For this reason, it is important that each person build for himself a scale of values, that is, a ranking that establishes a hierarchy among them. For example, the clash between saving life and Shabbat must be resolved by determining which of the two is more important.

But when we try to weigh two conflicting values in order to decide which one overrides the other, we confront an impasse. A value, by its very nature, is a principle that is not grounded in a reason external to itself. If some principle is grounded in another reason, then that more basic reason is what should properly be called the value, not the principle derived from it. If so, when there is a clash between two values, how can we decide between them? Resolving a value-conflict requires finding a single scale that can “measure” or weigh both of the values in question. The measure of one relative to the other provides the criterion for decision. But if a value is a principle for which there is no rationale or reason outside itself, how can we “measure” it?

For example, if Shabbat observance and saving life were both derived from a more fundamental principle—let us call it, for convenience, “purity of the soul”—then perhaps we could measure the value of Shabbat in units of purity of soul, and afterward the value of saving life in those same units, and then compare the two results in order to resolve the conflict. But if these are two values not derived from a more fundamental principle, what common scale will enable us to measure them?

All of this concerns two values within the same normative system. But if the values belong to two different normative systems, the problem becomes all the sharper: how can we measure two principles that belong to different worlds? Here it seems that the problem exists even if we are dealing not with basic values but with derived principles.

In our examples: if the problem is internal to halakha, one may perhaps look for a common scale by which to measure the two values against one another. But if the problem is to establish a hierarchy between a halakhic value and an extra-halakhic one, then there is no possibility of finding a common measure for them. This is the problem that in moral philosophy is called the incommensurability of values.

Deciding Normative Conflicts: Examples

Indeed, conflicts internal to halakha can be resolved by halakhic tools. For example, the conflict between saving life and desecrating Shabbat is resolved by halakhic tools: saving life overrides Shabbat. The reason given in the Gemara is that if we desecrate one Shabbat for that person, this will enable him to observe many Shabbatot thereafter.¹² In other words, we have found a common measure for the two principles, and we measure them on the same scale. In this case the scale is the value of Shabbat—how many Shabbatot will be observed. Desecrating Shabbat has a measure of one—one Shabbat will be desecrated—whereas the value of life on this scale is hundreds, namely the hundreds of Shabbatot that person can still observe in the course of his life.

Even in cases where the decision is more difficult, or even impossible, halakha guides us how to act. For example, sometimes one can adopt the halakhic rule that passive non-action is preferable.

But how can we decide between a halakhic value and an extra-halakhic one? In such a case, a priori, there can be no common scale that measures the two values.¹³ Nor can we use halakha’s own rules for conduct in conflict situations, since this is not a halakhic conflict. Thus this seems to be a problem with no clear solution.

The View of Sefer Ha-Ikkarim

Rabbi Joseph Albo, in Sefer Ha-Ikkarim, Part III, chapter 29, proposes a revolutionary way of deciding such conflicts. He says this within his discussion of the significance of intention in mitzvot, and of the ways in which every ordinary Jew can merit life in the World to Come. He writes that this is the reason the Holy One, blessed be He, gave us so many mitzvot. He adds that one can receive a share in the World to Come also for good deeds that are not commandments—compare what we said above about acts of piety and the like—and then he adds:

Our Rabbis of blessed memory have already clarified the general class of good actions that bring a person to attain the complete future life, aside from the commandments explicitly stated in the Torah. They said: “And you shall walk in His ways” (Deuteronomy 28:9): just as He is merciful, so you be merciful; just as He is gracious, so you be gracious; just as He bestows kindness, so you bestow kindness; just as He buries the dead, so you bury the dead, and so forth.

The sum of the matter is that every act that a person performs for the sake of Heaven grants him, by means of it, life in the World to Come. And even if that act is one that would be considered evil, our Rabbis of blessed memory said: “In all your ways know Him”—even with regard to transgression. And they further said: “A transgression for the sake of Heaven is greater than a mitzvah not performed for its own sake.” Understand this principle and know it, for it is necessary for the Torah of Moses; for otherwise the entire people of Israel would not gain life in the World to Come through the Torah, except perhaps one person from a city or one individual in a generation.

It seems that the author of Sefer Ha-Ikkarim proposes a revolutionary conception here: every act is judged by its motivation. If the intention is for the sake of Heaven, then the act is positive and grants a share in the World to Come. He seems to understand Rav Nahman bar Yitzhak’s principle in sweeping and total fashion—to the point that the halakhic criterion almost loses its significance.¹⁴ Something similar also emerges fairly clearly from a number of passages in the Hasidic work Mei Ha-Shiloach by the Rebbe of Izhbitza. We will not discuss his words here.¹⁵

In any event, even according to the author of Sefer Ha-Ikkarim, if a person commits a transgression that is clearly an evil act, he receives no reward for it. But it seems that anyone who performs a positive act, even if it is forbidden by halakha, performs an act that carries reward.

Even so, it is not clear whether he means to say that the Torah also expects us to perform every act we think is good, even if it openly contradicts halakha. It seems more likely that he means that such acts are indeed forbidden, but nonetheless we receive reward for the good intention that accompanied them. In fact, from the context of his words in that chapter, it appears that he is speaking about a partial share in the World to Come, at different levels, accessible to every person on his own spiritual level, and not necessarily about practical directives of the permitted and the forbidden. On this reading, his claim is much less radical. He reads the Gemara in Nazir in a rather conservative way: perhaps there is indeed no room to commit transgressions for any reason whatsoever, even if they are done for the sake of Heaven. Even so, if a person commits such a transgression, although he acted unlawfully and certainly contrary to halakha, he will receive reward for his good intention.

He apparently reads the Gemara’s conclusion differently from the way we cited it above from Rashi. In his view, the Gemara teaches that a transgression for the sake of Heaven is like a mitzvah not performed for its own sake, that is, an act whose value lies between mitzvah and transgression. In any event, there is no directive requiring us—or even permitting us—to perform such an act.¹⁶

Rav Kook and the Netziv: The Role of Intention

We have seen the view of Sefer Ha-Ikkarim, according to which there may be no permission, and certainly no obligation, to commit a transgression for the sake of Heaven, but there is reward for the good intention. By contrast, the view of the Netziv and Rabbi Kook is that there can be a full obligation to commit such a transgression. Rabbi Kook, in Mishpat Kohen, no. 144, s.v. “Y. u-Mai,” raises the possibility that this is akin to a non-obligatory but meritorious mitzvah, or perhaps merely something permitted.

The Netziv of Volozhin also writes that a transgression for the sake of Heaven is a full obligation, though a qualified one, subject to two conditions. In Meshiv Davar, Part II, no. 9, he writes:

In this matter there are two conditions. The first condition is that one derive no enjoyment at all from that transgression, as is stated there regarding Jael, who was praised for committing a transgression for the sake of Heaven, and the Gemara asks: But did she not derive benefit from the transgression? This shows that although she was permitted to commit the transgression because of the mortal danger facing Israel, nevertheless if she had derived enjoyment from this transgression, she would not have been praised at all, for it is forbidden to derive enjoyment from a transgression for the sake of Heaven. The second condition is that one must consider whether this transgression—of strife or pursuit—is worthwhile relative to the mitzvah that one calculates will come from it. This is what the Sages meant by “those who rule over their inclination”: they have no enjoyment at all in committing this transgression for the sake of Heaven, and afterward they “come to account”—that is, they calculate the loss that may result from this mitzvah against the reward they will receive from it. It may be that the loss that will result from it is greater than its reward, and the reward of the transgression for the sake of Heaven, which one intends, must be weighed against the loss that will come afterward …

The Netziv establishes here a principle to which he returns in several places in his Torah commentary: a transgression for the sake of Heaven can be committed only if the intention is positive. The evaluation of the act depends on the intention, and not only on the results. For example, if Jael wife of Heber the Kenite had in fact intended her own pleasure, this would not have been a positive act, even if it led to Sisera’s death.¹⁷

At first glance, this is also the distinction we saw above between Lot’s daughters and their father: they intended their act for the sake of a mitzvah, whereas he intended transgression. Yet there, too, we saw another distinction, concerning the knowledge available to them. Lot’s daughters thought that the world had been entirely destroyed, and therefore such an act could be justified; Lot, however, knew that only the cities of the plain had been destroyed.

The second principle stated by the Netziv is that the mitzvah for the sake of which one commits the transgression must indeed be of very great value relative to the transgression, and this is the calculation that must be made by those who master their inclination.¹⁸ Indeed, this is characteristic of nearly all the cases that appear in the halakhic literature in the context of a transgression for the sake of Heaven. Usually these are extreme cases, where the positive value is enormous, and therefore there is room to permit the transgression—for example, a situation in which the spiritual life of a Jew, or of an entire community, stands in danger, and some specific transgression could save it.¹⁹ Determining when we are in such a situation belongs to “the fifth part of the Shulchan Arukh,” in the famous expression of the Hazon Ish. That expression points to both the existence of the problem and the fact that its resolution lies outside the bounds of formal halakha.

“It Is a Time to Act for the Lord; They Have Violated Your Torah”

At first glance, 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 cases, one is permitted to violate a prohibition for the sake of an important value—the preservation of Torah. Babylonian Talmud, Gittin 60a, describes this as the basis for Rabbi Yehudah HaNasi’s decision to write down the Oral Torah, that is, the Mishnah, and the main sugya is in the Mishnah at the end of chapter 9 of Berakhot and in the Gemara there.²⁰

In fact, however, this is a different principle. There we are dealing with an enactment of an authorized beit din, which can determine that one must violate a certain prohibition.²¹ We, by contrast, are dealing with the transgressive act of an individual, who without a halakhic ruling decides to violate a prohibition in order to save an important value. Rabbi Azriel Hildesheimer therefore writes, in Part I of his responsa, Yoreh De’ah no. 219, s.v. “Mi-kol zeh nil’aniyut da’ati,” that one may doubt whether any act can be permitted under the heading of a transgression for the sake of Heaven when it is done in a regular and permanent way. A transgression for the sake of Heaven is, in its essence, a one-time act. A permanent permission would turn it into part of halakha.

It should be noted that Mishpat Kohen—in both of the places cited above—discusses the question to what extent a transgression for the sake of Heaven is still a transgression, and what its relation is to ordinary halakhic overrides such as a positive commandment overriding a negative prohibition, ritual impurity suspended for the public, rabbinic enactments for emergency communal protection, and the like. Rabbi Kook emphasizes that it is still a transgression, and therefore lies outside the domain of halakha. By contrast, rabbinic enactments for emergency communal protection become part of halakha, and there is certainly no transgression in fulfilling them.

Comparison to the Legal Approach: Conscientious Objection

At first glance, the concept of a transgression for the sake of Heaven parallels extra-systemic concepts that exist in the world of law as well—for example, conscientious objection, or even civil disobedience. Acts of both these kinds are also considered acts contrary to the law, yet after the fact the law grants legitimacy to those who perform them for worthy reasons and in an upright and sincere manner. Here too, intention is an important parameter in evaluating the act.

But here one must notice a fundamental difference between the cases. Conscientious objection and civil disobedience are cases in which the system grants retrospective legitimacy to an improper action that, even after it has been performed, is still regarded as unacceptable by the system. What we have there is recognition of a person’s right to act wrongly, as we would see it, not true legitimacy. No one praises the person who performed the act; on the contrary, he is held accountable for it. A transgression for the sake of Heaven, by contrast, is a different category altogether. Here halakha says that this was the right act. This is not merely a person’s right to act wrongly, but recognition that the act is right even though it runs contrary to halakha. The Torah even calls upon a person to act in this way—”a transgression for the sake of Heaven is greater.” This is a category utterly different from conscientious objection.

The innovation appears all the greater when one notices that halakha is here admitting that its instructions cannot cover all possible situations. In exceptional and extreme circumstances, a person can act in ways contrary to halakha, and halakha itself would tell him to act that way if it could address such situations specifically. The admission by a divine religious system of its own limits, and of its inability to address every possible circumstance, is very surprising indeed.

To the best of our knowledge, in ordinary legal systems—even though they are founded by fallible human beings—we do not find a parallel admission. As we have seen, such systems may recognize a person’s right to act contrary to the system’s instructions and to bear the consequences and sanctions imposed on him, but they do not acknowledge, from the outset, the limits of the system and an obligation to act contrary to the law in extreme cases. At most, there may be mitigation of punishment, but not an initial directive to act in that way.

Footnotes