A. Introduction
The subject of this book is whether and under what circumstances it
might be permitted to violate one commandment for the purpose of
fulfilling another, when one’s motives are pure.
As the basis for the principle that preservation of life suspends
almost all the commandments, the Talmud (Yoma 85b) cites: “Violate
for him one Sabbath that he may keep many Sabbaths.” Might it be
possible, on the basis of this principle, to conclude that it is permitted
to transgress not only to preserve life, but to prevent sin as well? Does
the mutual responsibility that Jews have for one another, as expressed
in the statement “All Jews are responsible for each other” (Shebu. 39a),
have the power to authorize one Jew to transgress in order to rescue
another from sin? If so, what are the limits of such authorization?
What is permitted in order to rescue one who is already in violation?
In addition to such questions, we must ask whether there is a
difference between preventing one person from transgression and
preventing many persons from transgression. This last question, in
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particular, has implications with regard to the peaceful co-existence of
observant and non-observant elements of the Jewish people, and
obviously rulings on such matters will be influenced by the
respondents’ view of such co-existence.
Our question bears on issues of punishment as well: Is it permitted
to suspend or modify penalties prescribed by law when there exists a
possibility that their imposition could lead to consequences detrimental
to the individual or to society?
Clearly, it will not be possible to give comprehensive answers to all
such questions. We will, however, attempt to illuminate several aspects
of the problem and present some of the fundamental issues.
B. A Transgression Performed with Good Intention
Gedolah Aveirah Lishmah
One text that could serve as an important authorization to transgress
when the motivation is fulfillment of a commandment, is the statement
in Tractate Nazir (23b), “A transgression performed with good
intention (lishmah) is better than a commandment performed not for
its own sake”–with the word lishmah taken as Rashi does, to mean
“for the purpose of fulfilling a commandment.”
The statement is a bold one, which seems to cut across all categories
in one fell stroke and base everything on the nature of one’s
motivation. The case offered as proof of this principle is that of Yael,
who, the Talmud tells us, had relations with the enemy general Sisera
in order to slay him (see Judg. 4:17–22). Hence one cannot help but
wonder if it is the Talmud’s position that normally forbidden relations
are totally permitted when their purpose is the fulfillment of a
commandment?
Further light is thrown on our passage by the talmudic discussion
in Sanhedrin (74b) of an act similar to that of Yael. The act under
examination was performed by Esther, who had relations with
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Ahashverosh in order to rescue the Jewish People from destruction.
The Talmud wonders how Esther’s act could have been permissible,
keeping in mind that it was a matter of public knowledge
(befarhesiya). In response, the Talmud explains that Esther was merely
terra firma (karka olam), which Rashi explains to mean that she was
merely the passive object of Ahashverosh (as land is the passive object
of the farmer who tills it) and did not act herself.
On the basis of the passage in Sanhedrin, the Tosafot in Nazir (loc.
cit., s.v. veHa Mit’hanya) explain that for the same reason, Yael’s act
was not one for which she would have been obliged to sacrifice her
life. Thus, it is apparent that the passage in Sanhedrin defines what is
permissible, while the passage in Nazir comes to establish the value
of acts–their relative importance. The mere determination that an act
is permissible does not yet establish that it represents the fulfillment
of a commandment. Thus, the discussion in Nazir establishes that a
transgression performed for the purpose of fulfilling a commandment
(under circumstances in which the forbidden act is permissible) is
greater in value than a commandment performed not for its own sake
but rather for personal purposes of the performer.
In the literature that deals with the issue of transgression in order
to fulfill a commandment, there is scarcely any mention at all of the
principle, “A transgression performed with good intention is better than
a precept performed not for its own sake.” What mention we do find,
is exemplified by Rashba’s use of the principle in response to a query
on the proper policy concerning punishment of offenders (Resp.
Rashba V:238). In the case before him, Rashba recommends
moderation and adds, “These matters are determined by the intention
of the heart, as you know what is said in Nazir (23b), that ‘a
transgression performed with good intention is better than a precept
performed not for its own sake.’” Rashba’s responsum does not deal
with punishment according to the prescribed law, but rather with
punishment demanded by the exigencies of the hour. Such punishment
is determined at the sole discretion of the judge. In such instances,
then, the evaluation that must be made with regard to possible
suspension of punishment has to take into account, among other
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considerations, the legal system’s view of the judge’s “transgression”
performed with good intention.
By contrast, we have a responsum on whether a married woman
may engage in relations with a strange man in order to save the lives
of others (Resp. Noda biYehudah, Mahadura Tinyana, Yoreh De’ah
161). It is R. Yehezkel Landau’s opinion that this is forbidden, and
that the principle of “terra firma” applied only where the actual
relations occurred under duress. If, however, the actual relations do not
transpire under duress, this is not an instance of “terra firma.” Men
and women are fundamentally equal in this; both are obliged to lay
down their lives rather than transgress.
Violation of the law in order to preserve it seems to receive a
somewhat broader interpretation in Hassidic literature. So, for example,
R. Ya’akov Yosef of Polanah writes, “We find that the main purpose
of God’s commandments is that we cleave to His ways, and sometimes
the value of a transgression with good intention is very great” (Toledot
Ya’akov Yosef, Pareshat Ki Tetze 5). R. Tzadok haKohen of Lublin,
in his Tzidkat haTzadik (25) mentions that sometimes love of God
requires one to sacrifice his soul, as in the case of King David who
sought to worship an idol, and the person who violated the Sabbath
by gathering wood during Israel’s sojourn in the desert (mekoshesh).
Both transgressed with good intention (leshem shamayyim). With
regard to a transgression performed with good intention, R. Hayyim
of Tzanz distinguishes between ordinary persons and one who
transcends human nature, abandoning all regard for his own bodily
pleasure (Divrei Hayyim, Pareshat Va’et’hanan, ad init.).
The opposite approach is found in the writings of R. Hayyim of
Volozhin, the leading pupil of the Gaon of Vilna. In his work, Nefesh
haHayyim (additional notes following Part III, chap. 7), R. Hayyim
notes the problematic nature of the statement “gedola aveira lishmah,”
which implies that it is permitted to transgress if one’s intention is
proper, a statement with potential to undermine all existing order.
Therefore, R. Hayyim posits that permission to transgress with good
intention applied only prior to the Sinai revelation, but since Sinai, we
are bound by the categories of the Torah, and thus the principle has
no practical application in our time. In the post-Sinai era, then, even
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a person becomes convinced that the fulfillment of his legal obligation
will cause damage, he is not permitted to abstain, since the reasons for
the commandments were not revealed.
R. Elhanan Wasserman (Or Elhanan, Part II, p. 3) considered the
issue of transgression with good intention when consulted about the
possible use of force in the struggle for employment of Jewish workers
(“avodah Ivrit”) in Eretz Yisrael. In his response, R. Elhanan writes
that “it is clear that the authority to permit transgression with good
intention was given only to the Sages and not to us… and that if such
authority is granted to all who wish to use it, there will remain no
room for our holy Torah. Indeed, the communist Bolsheviks also claim
that their tactics are for the good of society. But the tactics of terror
can only destroy; they can never build, as is written, ‘melekh
bemishpat ya’amid eretz–The King by justice upholds the country…’
(Prov. 29:4). From here we learn that the world can be upheld only
by justice, and that without justice, it is impossible to remain in the
world. For if one side employs terror, the other side will certainly use
this method as well.”
C. Considerations on Permitting Transgression with Good
Intention
It is not our purpose here to present an exhaustive analysis of the
question of violating the law in order to preserve it, but rather to set
forth a number of the most fundamental considerations. We now turn
to one of the basic talmudic discussions of the subject. The discussion
appears in Tractate Shabbat (4a) and leads us to consider two
fundamental dilemmas: the first, whether a person is permitted to
commit one transgression in order to avoid committing another
transgression; the second, whether a person is permitted to commit a
transgression in order to spare another person from committing a
transgression.
The basis of the discussion is the question raised by R. Beivai, son
of Abbaye, concerning one who has placed dough in an oven on the
Sabbath. Baking on the Sabbath is a biblical prohibition, but the
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transgression occurs only when the bread is actually baked. Therefore,
if dough has been placed in an oven on the Sabbath, if it is removed
before it has reached the critical stage, the initial act does not result
in a violation. Removing dough from an oven, however, is also
forbidden (where a special utensil is used to scrape it off), but only
by rabbinic enactment and not by biblical law (Shab. 117b). R.
Beivai’s question, then, is whether one who has placed dough in an
oven on the Sabbath is permitted to remove it, in violation of the
rabbinic enactment, in order to terminate the baking process before it
reaches the stage at which he will be in violation of the biblical
prohibition of baking on the Sabbath. In the Talmud’s attempt to
clarify whether the question concerns a person who acted with full
intention and awareness of the biblical prohibition (mezid), or one who
acted in ignorance (shogeg; either of the prohibition or of the fact that
the day is Sabbath), two possibilities emerge. The first is that the
individual acted in ignorance, and that R. Beivai’s question is whether
someone else would be permitted to remove the dough in order to
spare the perpetrator from transgression. The Talmud dismisses this as
a possible formulation of the problem with the simple question, “Do
we say to an individual, transgress so that your fellow man may
benefit?!” In response to this dismissal, R. Ashi raises the second
possibility, according to which the case under discussion concerns one
who acted with full awareness. Thus, the question is not whether it is
permitted for another person to remove the dough, but whether the
perpetrator himself is permitted to do so, in order to avoid
transgression.
Before we analyze this discussion and see how it has been
interpreted and applied by various authorities, it is important to note
that it closes with the citation of a different tradition. According to
this tradition R. Beivai’s remarks were not a question at all, but rather
a ruling, that one who places dough in an oven on the Sabbath in full
awareness of the forbidden nature of his act is permitted to remove it.
(Perhaps the most striking aspect of this ruling is that, although an
individual has performed a forbidden act in full awareness [mezid], it
does not foreclose the possibility of committing a transgression in
order to be spared the consequences of his original act.)
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Two conclusions can be derived from the talmudic discussion. The
first is that, as mentioned, one who places dough in an oven on the
Sabbath is permitted to transgress in order to avoid the consequences
of his original act. The second is that no one else is permitted to
transgress in order to spare the perpetrator from the transgression.
Both of these conclusions, however, are subject to qualification. The
obvious qualification that applies to the perpetrator himself is that he
is permitted to commit only a less serious transgression in order to
avoid committing a more serious one. This, after all, is the case of
removing dough from an oven, which is forbidden only by rabbinic
enactment and thus involves violation of a prohibition less severe than
that which will be incurred if the bread is baked.
An even more significant qualification applies to the case of one
who would spare another person from transgression. From the
Talmud’s rhetorical question, “Do we say to an individual, transgress
so that your fellow man may benefit?!”, it appears more or less
self-evident that we do not say to a person, “transgress that your
fellow man may benefit.” But here, the Tosafot create a real
revolution!
By comparing the discussion with other talmudic discussions, the
Tosafot (Shabbath 4a, s.v. veKhi Omrim), alter the ostensible meaning
of our passage considerably. First, on the basis of a discussion
appearing in Tractate Erubin (32b), the Tosafot conclude that if A was
instrumental in B’s transgression, A is permitted to violate a lesser
prohibition in order to prevent B from a more severe violation.
Accordingly, the reason one is not permitted to remove dough on
another’s behalf is that he did not cause the other person to transgress.
Only one who has some causal relationship with another person’s
transgression is permitted to violate a lesser prohibition in order to
spare him.
In passing, it is interesting to note the suggestion of Rav Kook (first
Chief Rabbi of the Land of Israel) that the relationship between son
and father is considered equivalent to the relationship between a
transgressor and the one who was instrumental in his transgression,
since the father is responsible for his child’s education and the child’s
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behavior is a function of the education he has received (Hevesh Pe’er,
chap. 14).
R. Yehudah heHasid (of the late twelfth century and early thirteenth
century), in his Sefer Hasidim (ed. Mekitzei Nirdamim, 125), cites the
talmudic discussion under analysis in connection with Moses’s
dramatic act of casting the tablets of the Law to the ground. Moses,
he explains, threw down the tablets in order to save the Jewish People,
reasoning, “It is better that I be guilty than that the entire people of
Israel be guilty.” R. Yehudah heHasid goes on to explain that since
Moses caused Israel to sin by tarrying on the mountain, it was proper
for him to sin in order to save the people in whose sin he was
instrumental.
Tosafot make two other qualifications, relating to the “benefit” (if
that term can be used) that is expected to result from the transgression.
On this dimension, Tosafot offer the novel ruling that if the purpose
of the violation is to enable someone else to fulfill an important
commandment (mitzvah rabbah), or a commandment that relates to
the many (mitzvah derabim), the violation will be permitted.
According to this opinion, then, transgression is permitted not strictly
for the purpose of preventing another transgression but also for the
purpose of fulfilling a commandment, provided the commandment
meets one of the two criteria mentioned.
Tosafot reach this conclusion on the basis of the discussion in
Tractate Gittin (41b) regarding one who is half slave and half free.
Due to his unique status, such an individual can never marry: because
he is part free, he may not marry a bondswoman, while his slave side
prevents him from marrying a free woman. Accordingly, the Talmud
rules that the master of such an individual is to be compelled to free
him (although freeing a slave involves a prohibition) in order to enable
the person to fulfill the commandment to “be fruitful and multiply”
(periyah urviyah). Tosafot explain that the master is permitted to
transgress, because the commandment to have children is an
important one.
As mentioned, Tosafot rule that the same principle applies when the
commandment in question is one to be fulfilled by many people. This
principle may serve as a source for permission for a leader to violate
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a commandment in order to spare the community from sin. Such a
consideration may be permitted also by virtue of the fact that the
leader bears some measure of responsibility for the behavior of the
members of the community (perhaps in the way that Rav Kook
suggests that a father bears responsibility for the behavior of his son).
The principle that it is permitted to violate one commandment to
enable fulfillment of a greater commandment immediately raises the
issue of establishing a hierarchy of commandments and violations.
This, of course, is no simple matter (particularly when we note that
the prohibition of baking on the Sabbath is not considered important
enough to permit another person to violate the rabbinic prohibition of
removing dough from an oven). But before discussing this issue, we
return to our Tosafot.
While, until now, we have seen from Tosafot that the Talmud’s
prohibition of violating a commandment in order to prevent another
person from transgressing is the main rule, subject to a number of
qualifications, Tosafot, further on, reverse our basic premise. Tosafot
now explain that our basic principle, that we do not say “transgress so
that your fellow man may benefit,” applies only in a case wherein your
fellow man has already done wrong (pasha), a case such as that of
an individual who has placed dough in an oven on the Sabbath. In
other words, the rule becomes the exception! The rule, then, is not that
we do not say “Transgress so that your fellow man may benefit”.
The rule is that we do say this–unless your fellow man has himself
already begun the transgression.
When applying “Transgress so that your fellow man may benefit,”
the question becomes, Who is considered as having negligibly done
wrong (poshe’a)? On one hand, we have seen that in the case of one
who placed the dough in the oven, regarding which we are not
permitted to transgress to save him, the dough was placed there
beshogeg, in ignorance. This shows that full awareness of the sinful
nature of the act is not required in order to establish the individual as
being negligent.
On the other hand, Tosafot make an extremely interesting
innovation: that the definition of negligence does not include one who
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is “seduced” into transgressing. One who is seduced into transgressing
is not considered negligent, but rather to have acted under duress.
Tosafot infer this from the case cited in Gittin (38b) in which the
Rabbis compelled a man to free his bondswoman who engaged in
immoral actions because of her low status. Tosafot explain that it was
her practice to approach men and offer herself, and therefore those
who were “seduced,” as it were, are considered as having acted under
duress. Therefore it was permitted to free the bondswoman, although
this involved a prohibition, in order to rescue those who were seduced
to sin. (Such “duress,” of course, is not duress in the full sense of the
term. On the contrary, if this were an instance of true duress, there
would be no grounds to permit the transgression of freeing the
bondswoman, since those involved would not be considered
transgressors. Nevertheless, it is considered duress for the purpose of
permitting a transgression on behalf of those involved.)
The various distinctions made in the question of when we may say
“sin so that your fellow man may benefit,” have important practical
implications, one of which we shall examine briefly. Rashba (Resp.
Rashba VII:267) was asked whether a man is permitted to violate the
Sabbath to save his daughter who was taken from her home and who,
it was feared, would be frightened into converting to another faith.
May the Sabbath be violated in the case of such a possible danger as
it may be violated in the case of a possible danger to human life?
Rashba responds that in such a case it is not permitted to violate the
Sabbath in order to prevent transgression, since it is permitted for one
to transgress in order to prevent another person from sinning, only if
he was instrumental in the other person’s potential sin.
R. Yosef Karo, however, disagrees with Rashba’s ruling. R. Yosef
Karo (Beit Yosef, Orah Hayyim 306) bases his opinion on the ruling
of Tosafot that it is permitted to transgress in order to spare another
person from violating an important commandment, or when the
other person has not been negligent. Accordingly, he argues, there is
no more “important commandment” than rescuing a Jew from
conversion, and in this case, the man’s daughter was not negligent. In
comparison to conversion which will cause the violation of the Sabbath
for an entire lifetime, a one-time violation of the Sabbath is considered
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a mild violation. Therefore, R. Yosef Karo concludes that it is
permitted to violate even the biblical prohibitions of the Sabbath in
order to save the girl.
Is the prevention of conversion comparable to the saving of human
life? It may be that Rashba’s questioner wished to make just this
comparison. What is clear, however, is that Rashba himself does not
think so, since he refuses to permit violation of the Sabbath in order
to prevent conversion. Moreover, even R. Yosef Karo does not base
his permission to violate the Sabbath on danger to human life, but
rather on the principle that the violation is for the sake of an
“important commandment.”
Nevertheless, another authority does make the analogy, and he does
so in quite a novel fashion. R. Mordekhai Yafeh argues that since one
is required to sacrifice his life rather than violate the prohibition of
idolatry, we are obliged to rescue one compelled to convert, in order
to save him from having to sacrifice his life (Levush, Orah Hayyim
306:14).
A further step was taken in this direction by R. Shemuel ben David,
in a responsum that discusses saving a person about to convert
voluntarily to another faith (in the responsa printed at the end of
Nahalat Shivah, responsum 83). In such a case, there is no question
of saving human life. Since the person is converting voluntarily,
clearly, he will not sacrifice his life rather than engage in idolatry.
Furthermore, he is clearly negligent. Like the person who placed his
dough in an oven on the Sabbath, he is already involved in a
wrongdoing. May it yet be permitted to violate the Sabbath to save
him?
R. Shemuel’s response is that here too, it is permitted to violate the
Sabbath to save the person from conversion. R. Shemuel gives a
number of reasons for this. We will mention two. First, if it is
permitted to violate the Sabbath in order to save the body, a fortiori
it must be permitted to do so in order to save the soul from “eternal
death.” Second, even with regard to the voluntary nature of the
conversion, the person