Friday, 17 June 2022

Breaking the Rules


The Torah contains a large number of commandments, covering many different aspects of our lives (as well as many that are not obviously relevant to us, depending on historical and personal circumstances). Inevitably, sometimes these commandments will conflict with each other, and there are several halachic principles that we must follow to determine what we should do in these circumstances.[1]

At other times, there may be no conflict between formal commandments, and the halacha may be straightforward, but there is nevertheless a dilemma as to how to proceed. It may seem surprising to some, but there are (rare) occasions where following the halacha is not the correct option. The purpose of this post is to clarify this point.


We will start with what appears to be an example of conflict within halacha. We are commanded to follow the instructions of a prophet:

נָבִיא מִקִּרְבְּךָ מֵאַחֶיךָ כָּמֹנִי יָקִים לְךָ ה' אֱ-לֹהֶיךָ אֵלָיו תִּשְׁמָעוּן:      (דברים יח, טו)

"Hashem your G-d will establish for you a prophet from among you, from your brethren, like me. You must listen to him."

Devarim 18:15

What happens if the prophet instructs us to transgress a commandment? Chazal tell us that provided that the instruction is only temporary, for the needs of the time, we must listen.[2] The paradigm example was the instruction of Eliyahu HaNavi to bring a sacrifice at Mount Carmel, in violation of the prohibition on bringing a sacrifice outside the Beis HaMikdash, in order to demonstrate the existence of G-d and the futility of Ba'al worship.[3]

In this case, for the people instructed by the prophet, there is a conflict between the commandment to listen to the prophet and the prohibition of sacrificing outside the Beis HaMikdash. There is also a clear rule that tells us how to resolve the conflict. But what about the prophet himself? How does he decide that it is necessary to disregard a Torah prohibition?

One obvious possibility is that the prophet never can make such a decision unilaterally. We must follow the prophet only because he speaks in the name of G-d, and we can rely on him not to give such an instruction without being told explicitly to do so. However, this assumption may not be correct.

The gemara attempts to derive from the case of the prophet that the Chachamim have the right to uproot a Biblical commandment. This derivation is rejected as being over-generalised, as the prophet can only act in this way in order to address the specific needs of the time (not to uproot a commandment permanently). Crucially, the gemara concludes that a beis din has the same power, and can impose punishments not mandated by the Torah based on the needs of the time.[4]

The clear implication is that there sometimes is a necessity to suspend halacha, even without Hashem's explicit command. Tosfos explain that prophecy could never be critical to this, as after the Torah was given, prophets have no right to add anything.[5] In the case of Eliyahu, prophecy may have been required in order to rely on fire coming down from heaven,[6] but this is a mere technicality.

We can conclude that a prophet or beis din does have the authority to disregard halacha at times of severe need.[7] Obviously, careful deliberation will be required to determine when this is necessary. By definition, there is no rulebook that can decide this.

Aveira Lishma

There is not always a prophet or beis din available to decide when a particular situation is severe enough to require extreme action. The truth is that when required, even an individual may need to take the law into his or her own hands. No law book, even one given by Hashem, can provide the correct guidance in 100% of situations in a format comprehensible to humans.[8]

Chazal provide just one explicit example of this. When the Cana'anite general Sisra fled from battle, he reached the tent of Yael, the wife of Chever HaKeini, a descendant of Yisro. He asked for water, and despite being a married woman, she proceeded to seduce and then kill him, thus playing a significant role in the saviour of the Jewish People from the Cana'anim. Speaking of this act, Chazal comment, "An aveira with the right motivation (lishma) is as great as a mitzvah with ulterior motivation."[9]

The concept of aveira lishma was misused by Shabtai Tzvi in the 17th century with devastating effects. In the 19th century, certain Chasidic commentators applied the term to the relationship of Zimri with the Midianite princess Kozbi,[10] and to David HaMelech's relationship with Batsheva,[11] despite both of these things being explicitly criticised in Tanach.[12]

Such abuse of the term, whether by action (in the case of Shabtai Tzvi) or through commentary alone, was criticised severely, and rightly so.[13] However, this does not mean that we can erase the entire concept, and we must recognise that there are instances in which halacha must be 'overruled.'

Contemporary Examples

It is difficult to provide contemporary examples similar to that of Yael, but this is not because they don't exist. Israeli government officials, from unknown spies up to the prime minister, will frequently need to break Shabbos and likely commit other 'transgressions', even when there is no clear-cut or immediate danger to life. A modern country simply could not function without this. Judgement regarding when this is necessary can usually only be made by the individuals involved, and the details usually cannot be public knowledge.

There may also be potential to apply the concept of aveira lishma in some difficult situations where halacha could cause family breakdown, or prevent people from starting families. Many rulings in these areas use forms of 'halachic gymnastics' in an effort to be lenient. Committing an aveira lishma, or even advising someone else to do so, may well be a better option than falsifying halacha.[14] It is impossible to give a formula as to when aveira lishma would be appropriate in these cases, and each case must be judged on its merits.[15]

I had also originally considered the case of doing melacha on Shabbos to save a limb, as a potential case of aveira lishma. However, upon further reflection, this case does have a valid solution within halacha (details below).[16]

One of the main difficulties in applying aveira lishma to situations such as the above is in ensuring that the act is indeed carried out lishma (with pure intentions).[17] This is especially difficult when the main beneficiary of the aveira is the person committing it.

In practice, the overwhelming majority of us are unlikely to be faced with a situation that requires an aveira lishma. Nevertheless, being aware that the concept exists is important for a broader understanding of the Torah and of the limits of what is expected from us.

[1] Examples of this are the rule that a positive commandment 'pushes aside' a negative commandment (provided that certain conditions are met) and that saving a life takes precedence over almost every other commandment.

[2] Also provided that the prophet has established himself by performing a 'sign or miracle.' See Rambam, Hilchos Yesodei HaTorah 7:7 and all of chapter 10 for details.

[3] Yevamos 91a.

[4] Yevamos 90b

[5] Quoting Megila 2b.

[6] This is the explanation of Tosfos in Yevamos, and is supported by the Yerushalmi in Ta'anis 2:8, which says that Eliyahu acted fully, based on the command of Hashem. However, Tosfos in Sanhedrin 89b (ד"ה אליהו) considers the possibility that Eliyahu acted independently, and this question is also debated by the commentaries on Melachim 1, 18:36.

[7] At least in theory, this applies even to Batei Din today who do not have semicha (in the original sense of the term). However, it is limited to Batei Din recognised by the community as having power (see Choshen Mishpat 2:1 for details), and whether such Batei Din exist today is questionable.

[8] In general, halacha must be followed even when the underlying reason for a particular halacha does not apply. I explained in Eternal or Obsolete?, quoting the Rambam (Moreh Nevuchim 3:34), that it is usually necessary to have one rule for everyone and for all generations, even if this causes damage in a minority of cases. However, in extreme cases, this damage will be so severe as to necessitate breaking the ordinary rules and relying on us understanding that this is a one-off.

[9] Nazir 23b, based on Shoftim 5:24.

[10] See Mei HaShiloach at the beginning of Parshas Pinchas.

[11] See for example R' Tzadok HaKohen MiLublin, Divrei Sofrim 28.

[12] The application to Zimri is particularly objectionable, as Chazal in Nazir 23b explicitly contrast the praiseworthy act of Yael with the perverse act of Zimri.

[13] See for example Ramchal in Kinas Hashem Tzva'os volume 2, Inyan Yael; R' Chaim miVolozhin, Keser Rosh 132.

[14] As these areas of halacha are today usually under the control of beis din, who are expected to issue written halachic rulings, this option may not be practical. By definition, a halachic ruling cannot permit an aveira lishma, as an aveira lishma involves a transgression of halacha.

However, one example in which the ultimate decision remains in the hands of the individual is the case of a wife who confesses to committing adultery, without there being sufficient evidence for beis din (or the husband) to confirm this. The halacha is that she is not believed, due to the concern that she has fabricated the story in order to marry someone else (see Nedarim 90b, Shulchan Aruch Even HaEzer 115:6). Therefore, if the husband is unconvinced that adultery has been committed, he is certainly not obligated to divorce, and beis din will tell the wife that she may stay with her husband. The wife herself will know the truth, and in extreme circumstances may be justified in staying with her husband, on the grounds of aveira lishma.

[15] Prevention of family breakdown or facilitating marriage clearly cannot be used automatically as a justification for an aveira lishma; the existence of laws like mamzerus, which prevent or break certain marriages in their very essence, certainly have a purpose.

[16] Melacha on Shabbos is in principle forbidden even to save a limb, according to the simple reading of the gemara, the vast majority of rishonim and the Shulchan Aruch. Nevertheless, today the consensus is to rule leniently. The justification given for this is that today's medical knowledge tells us that whenever a limb is at risk, there is also at least a small risk to the person's life.

While I never disputed the risk involved to human life, I believed and still believe that Chazal were also aware of this (people died after losing limbs in the past as well). Although melacha is permitted on Shabbos even when there is only a minority chance of it being required in order to save human life, my impression from Chazal is that this is only true when this chance is significant (see for example Yoma 84b, Shulchan Aruch Orach Chaim 329:2). When a limb is at risk, the risk of death is often not significant enough to permit melacha on Shabbos according to Chazal.

However, if we were to follow Chazal here, this would have disastrous consequences. In today's world, if Judaism required sacrificing a limb when necessary in order to keep Shabbos, we would be viewed both externally and internally as similar to cults that require child mutilation and other despicable practices. One could therefore make an argument for breaking Shabbos to save a limb as a form of aveira lishma.

After further consideration, I concluded that in fact we do not need to resort to aveira lishma in this case. It is true that Chazal did not consider potential loss of a limb to be a significant risk to life, but this is because 'significant risk' is relative to the conditions of the time. When life expectancies were low, and the chances of any person dying within the coming year were relatively high, the additional risk to life caused by the potential loss of a limb was indeed not especially significant. This is no longer the case, and in our times, it is quite possible that Chazal would agree with the view of modern poskim.

[17] This was not in question in the case of Yael, who risked her life in order to save the Jewish People. 

No comments:

Post a Comment