Question

In your excellent book To Perform Your Commandments, which has hardly left my hands (together with its siblings In the Shadow of Wisdom and On the Path of the Commandments) since I bought it several years ago, you presented the Brisker Rav’s view regarding an act with good intentions (p. 97 and onward). You explained there that in his view, the very intention to commit a transgression is considered an act of transgression, and you developed his position on that basis. In my humble opinion, that was not his intent. Rather, this is what he meant: when the Torah obligates a sacrifice for an act that is not intrinsically forbidden (such as an act with good intentions, violating a vow that had already been annulled, or a Torah-level doubt involving karet according to Maimonides, who holds that Torah-level doubt is treated leniently), then along with the obligation of the sacrifice the Torah “plants” a prohibition into that act, whose parameters are only the parameters of the sacrifice-obligation. Therefore, when one’s conscience is not troubled (according to Maimonides, who holds that Torah-level doubt is treated leniently on the Torah level), the act itself would be permitted — the prohibition stems from the obligation of the sacrifice, not vice versa.
Of course, according to this there is no basis at all to attribute to the Brisker Rav the position that intention itself (or its realization) is considered a prohibition.
To make things easier, I am attaching here the wording of the Brisker Rav (end of tractate Nazir 23a):
The Talmud says: “The Rabbis taught: ‘A woman, and the Lord shall forgive her’ — Scripture speaks of a woman whose husband annulled her vow and she did not know; she requires atonement and forgiveness.” At first glance, the simple meaning of the Talmud is that since she intended something forbidden, that is why she requires atonement and forgiveness, even though in practice she did not commit an act of prohibition. And the fact that she does not receive the forty lashes is obvious, and there is no novelty in that law, for since her husband annulled it, she did not perform an act of prohibition at all — it is permitted — and therefore she is exempt from lashes. The whole novelty is that she requires atonement in such a case.
However, Maimonides wrote in chapter 12 of Laws of Vows, halakhah 18: “If she took a vow and the father or husband annulled it, and she did not know that he annulled it, and she violated her vow or oath intentionally, she is exempt. And even though she intended what was forbidden, since it was done permissibly, she is exempt. About this it is said: ‘And the Lord shall forgive her, because her father restrained her.’ And they give her disciplinary lashes because she intended what was forbidden.” Thus Maimonides wrote that the novelty is that she is exempt from lashes even though she intended what was forbidden, and he also brought proof for this from the verse — that she is exempt, and that about this it says “And the Lord shall forgive her.” It is clear from this that in such a case she would have had to be lashed, and only this verse newly teaches that she is exempt.
 
Now this requires explanation, because the straightforward sense of the Talmud is that the meaning of the verse is only that she requires atonement for her intention to do something forbidden, whereas from Maimonides it appears that the entire basis of the exemption is learned from this verse. And indeed so it is in the minor Sifrei on the portion of Matot, that she is exempt from lashes because it says “And the Lord shall forgive her.” So it is explicit that the exemption is learned from the verse. And this needs explanation: why is a verse needed for this? It is obvious that the act is permitted, so how could one obligate her for it?
The explanation seems to be this: Maimonides understands that when we learn from the verse that she requires atonement and forgiveness, the intent is not that we judge her in Heaven as requiring atonement and forgiveness because she intended something forbidden. Rather, we learn that such an act — drinking wine while intentionally transgressing — is an act of prohibition that requires forgiveness and atonement for it; the Torah considered this act to be an act of prohibition. However, with respect to Torah lashes, the husband’s annulment is effective and it is considered permitted, so that she is not lashed for it. But in essence it is still like an act of prohibition, and therefore she receives disciplinary lashes for it (and not merely because she intended what was forbidden). And all this is learned from the verse “And the Lord shall forgive her,” namely that for such an act she is exempt only from Torah lashes, but still requires atonement and forgiveness. According to this, the exemption applies only to Torah lashes, but disciplinary lashes she is liable for, because regarding that there is no reason to exempt her. And this is what Rabbi Yehudah says: “If she does not receive the forty, let her receive disciplinary lashes” — for although she is exempt from lashes by a scriptural decree even though she intended what was forbidden, nevertheless since there is here an act of prohibition, she should receive disciplinary lashes.
Accordingly, one may say that Maimonides, who rules like Rabbi Yehudah that they give her disciplinary lashes, does so because he understands that Rabbi Yehudah does not disagree with the Sages. The Sages, who say that she does not receive the forty, mean to establish the basic law that in such a case she is exempt from Torah lashes. But they are not speaking at all about disciplinary lashes, and really even the Rabbis agree with Rabbi Yehudah that there are disciplinary lashes here. And so too it appears from Rashi above on 21b on the passage where it says that the opening clause — of a woman who took a Nazirite vow and was drinking wine, and receives the forty — was taught because of the latter clause, which states: if her husband annulled it and she did not know, she does not receive the forty. And Rashi explains that in the latter clause it was necessary to say this because one might have thought that she should receive them, since she intended what was forbidden. This fits what was explained above: the novelty is that she is exempt from lashes, and this is because it is an act of prohibition. And Rabbi Yehudah, who says, “If she does not receive the forty, let her receive disciplinary lashes,” means that precisely because we learn from this that she needs only forgiveness and atonement, therefore she should receive disciplinary lashes. According to this, there is no proof that in every case of intending what is forbidden one receives disciplinary lashes.
.. And according to what was explained — that in this verse, “And the Lord shall forgive her,” it is not said only that she needs atonement, but from the fact that she needs atonement it must follow that there is an act of prohibition here — the sugya in Ketubot 22b will also be explained. The Rabbis taught: “If two say, ‘He died,’ and two say, ‘He did not die,’ … she should not marry, but if she married, she need not leave.” The Gemara asks: “Since it is two against two, one who has relations with her stands liable for a provisional guilt-offering.” Rav Sheshet said: “For example, she married one of her witnesses.” The Gemara then asks: “She herself stands liable for a provisional guilt-offering!” And it answers: “Where she says, ‘I am certain.’” Rashi explains: “One of her witnesses” — namely, one of those who said he died, for a provisional guilt-offering applies only to one whose conscience troubles him, but this one says, ‘I am certain.’” “Where she says, ‘I am certain’” — “My conscience does not trouble me, for I am certain that if he were alive, he would have come.”
Now the Gemara’s words require explanation. Why does it ask from a provisional guilt-offering? Even without that, there is still a difficulty, for after all two against two is a doubtful prohibition, and a Torah-level doubt should be treated stringently, so she should be forbidden to marry out of doubt. Furthermore, why does it ask from the provisional guilt-offering? The fact that one brings a provisional guilt-offering teaches only that one is obligated in a sacrifice for such an act; it does not show that it is forbidden to act where one would need to bring such an offering. So here, where it wants to prove that it is forbidden for him to live with this woman, there is no proof at all from the provisional guilt-offering. Also, Rashi’s explanation is difficult, that a provisional guilt-offering applies only to one whose conscience troubles him. Why should “I am certain,” in the sense that “my conscience does not trouble me,” help regarding the prohibition of a married woman? Seemingly this is only a law regarding liability for a provisional guilt-offering — that one whose conscience troubles him is not liable to bring a sacrifice. What does that have to do with the underlying prohibition of a married woman? There one would need certain testimony.
The explanation seems to be as follows, based on Maimonides’ position in chapter 9 of Laws of Defilement by the Dead, halakhah 12, that a Torah-level doubt is, on the Torah level, treated leniently and is prohibited only rabbinically. Maimonides concludes there: “Nevertheless, matters for whose intentional violation one is liable to karet — their doubt is forbidden on the Torah level, for one who does them is liable for a provisional guilt-offering.” See the Kesef Mishneh there, who writes that Maimonides is answering with this what was asked against his position from the fact that one brings a provisional guilt-offering for a doubtful prohibition, even though on the Torah level doubtful cases are treated leniently. To this he answers that in prohibitions for which there is liability for a provisional guilt-offering, the doubt is forbidden on the Torah level, and they differ from other prohibitions.
What emerges from Maimonides’ words is that although in every doubtful prohibition it is permitted on the Torah level and prohibited only rabbinically, nevertheless the prohibition of a doubtful karet-case for which there is liability for a provisional guilt-offering is forbidden on the Torah level. For the Torah revealed this to us through the liability for the provisional guilt-offering: the very fact that the Torah obligated a sacrifice says about the doubt itself that even the doubt is forbidden on the Torah level.
Accordingly, the Gemara in Ketubot is very well explained. Since every doubt that is forbidden on the Torah level depends on actual liability for a provisional guilt-offering, that is why it asks specifically from liability for a provisional guilt-offering, because from the fact that one is liable for a provisional guilt-offering we know that the doubt is forbidden on the Torah level. But merely from the existence of a doubtful prohibition it could not ask, since that is permitted on the Torah level.
And with this, Rashi’s words in the Gemara’s answer — “where she says, ‘I am certain’” — are also explained: it is enough that she says with certainty that “my conscience does not trouble me,” and that helps with regard to the prohibition, even though this is a law only in liability for a provisional guilt-offering, that one whose conscience does not trouble him is not liable to bring a sacrifice. What does this have to do with the actual prohibition? But according to what was explained, that the main prohibition is learned from the liability for a provisional guilt-offering, it is perfectly clear. Since liability for a provisional guilt-offering exists only when one’s conscience troubles him, then where his conscience does not trouble him and he is not liable for a provisional guilt-offering, no prohibition regarding the doubt was ever said here. The law then reverts to that of all other Torah-level doubts, which are not prohibited on the Torah level. Therefore, if she married, she need not leave. Consider this carefully.