Halakha and Reality: Three Kinds of Wrongdoing

The central idea

When a person sins, three different things happen:

1. Reality is damaged. Something in the world has gone wrong, even if the person did not intend it.

2. The person sins. He did not listen to God’s voice. This is true even if he erred in good faith, if he could have been careful.

3. The person is punished. This happens only if he acted deliberately.

Each layer calls for a different response. For the damage to reality, one brings an asham offering. For the person’s sin, one brings a chatat offering. And for a deliberate sin comes punishment. This distinction runs through three stories in Genesis.

Three stories, three words

Three times, one of the Patriarchs asks his wife to present herself as his sister, before a king who might take her: Abraham and Sarah before Pharaoh (Genesis 12), Abraham and Sarah before Abimelech (20), and Isaac and Rebecca before Abimelech (26). Why does the story repeat three times? Look at the words:

• With Pharaoh, there is not a word about sin or guilt. There is only punishment: “The Lord afflicted Pharaoh with great plagues.” This is mezid (a deliberate sin).

• Abimelech, to Abraham, says: “You have brought on me and on my kingdom a great chata’ah.” This is shogeg (an unintentional sin, but with negligence).

• Abimelech, to Isaac, says: “You would have brought asham upon us.” This is ones (compulsion, with no fault at all). There was no sin, but a married woman was nearly taken from her husband. The situation itself is defective.

The proof from the verses

• With Isaac, the people of the place asked before doing anything: “The men of the place asked about his wife” (26:7). Isaac misled them. So they acted under compulsion: no sin on them, only the risk of damage to reality.

• With Abimelech and Abraham, Abimelech took Sarah without asking. He says to God: “In the integrity of my heart and the innocence of my hands I have done this.” But God answers only: “In the integrity of your heart you have done this” (20:5-6). The innocence of his hands, He does not confirm. So there was negligence: an unintentional sin, not compulsion.

• With Pharaoh, Abraham does not even try to justify himself. The Egyptians, writes Nachmanides, “were very wicked and sinful,” and took Sarah without asking at all. And of the plagues he writes that they came “because of the violence (chamas) done to Sarah” (Nachmanides, Genesis 12:11-17). “Chamas” is a word from the world of theft, and we will return to it.

Three stages in education

The three layers are also three stages in education:

1. Fear of punishment: do not sin, so as not to be punished.

2. Fear of sin: do not transgress God’s word, even without bad intent. That is, be careful even of unintentional sin.

3. Protecting reality: understand that God forbade these things because they damage the world. So even where there is no sin, one must make sure reality stays whole.

What is the asham offering?

There are six kinds of asham offering: three for a sin (the asham for misuse of sacred property, the asham for theft, and the asham for the “betrothed maidservant”), two for purification (of the nazirite and of the metzora), and the conditional asham (asham taluy), for a doubt.

The Mishnah (Keritot 9a) says that most asham offerings come for a deliberate sin as well, not only an unintentional one. This is strange, since an offering usually atones only for an unintentional sin. But two of them, the asham for misuse and the conditional asham, come only for an unintentional sin. So what do they all have in common?

The answer: the asham offering comes for damage to reality, not for the person’s sin. Usually, the damage is entering a domain that is not yours, like taking what belongs to someone else. Let us check this for each kind.

1. The “betrothed maidservant”

The “betrothed maidservant” (shifchah charufah) is a woman who is half maidservant and half free, betrothed to a Hebrew servant. Because she is half a maidservant, she is not considered an ordinary married woman. So according to most views, a man who has relations with her does not even violate an ordinary Torah prohibition. And yet he must bring an asham offering. For what?

The Pnei Yehoshua (Gittin 43a) explains: even if there is no prohibition, she already “belongs” to someone else. That is why another man’s betrothal does not take effect on her. One who has relations with her has, as it were, stolen her from her husband.

Proof comes from the Maharik (Responsa of the Maharik, root 167; cited by the Rema, Even HaEzer 178:3). Ordinarily, a shogeg (one who sins unintentionally) is someone who did not know one of two things (Mishnah, Shabbat 67b):

• He did not know the law: he knew what he was doing, but did not know it was forbidden.

• He did not know the facts: he did not really know what he was doing. For example, he did not know it was Shabbat.

Throughout the Torah, both cases count as unintentional. But the Maharik rules that a woman who betrayed her husband willingly, knowing what she was doing but not knowing it was forbidden, is forbidden to her husband as if she had acted deliberately. Here, not knowing the law does not help. Only if she was mistaken about the act itself, for example if she thought the man was her husband and it turned out he was not, is she considered to have acted unintentionally, and she remains permitted to her husband.

Why? The Maharik infers it from the verse: “and commits a trespass against him” (Numbers 5:12). It does not say “commits a trespass against God,” as with the violation of a commandment, but “against him,” against her husband. So the problem is not the violation of the law, but the harm to the husband. And a woman who knew she was harming her bond with her husband harmed him, even if she did not know it was forbidden. The bond between a man and his wife is not only a law. It is a reality, and harming it is a “trespass” (me’ilah), even without a deliberate transgression.

2. The asham for misuse of sacred property

Me’ilah (misuse) is the use of something belonging to hekdesh (Temple property). The asham for me’ilah comes only for an unintentional act. Why?

Because the Torah defines me’ilah only as unintentional: “If a person commits a trespass and sins unintentionally” (Leviticus 5:15). Only when a person misuses Temple property by mistake does the object leave the Temple’s domain and become chullin (ordinary property). If he did it deliberately, he commits a sin, but the object remains Temple property.

What does this show? The sin exists even when the act is deliberate, and yet no asham is brought for it. So the asham does not come for the sin. It comes for the object leaving the Temple’s domain: for the damage to reality, which happens only when the act is unintentional.

Two surprising examples:

• Eating without a blessing. The Gemara says: “Whoever benefits from this world without a blessing has committed me’ilah” (Berakhot 35a). And the students of Rabbenu Yonah (ibid.) write that one who eats without a blessing must actually bring an asham offering for me’ilah, even though the blessing is rabbinic (an obligation set by the Sages, not by the Torah). The reason: one who benefits from the world without a blessing takes what is not his without permission. And this is exactly the damage to reality that requires an asham, even without a written source.1 That is why, the students of Rabbenu Yonah write, one who said even “shehakol” is free of me’ilah: he thanked God, and no longer took without permission.

• Me’ilah with konamot. A konam is a vow by which a person forbids an object to himself as if it were Temple property. For example: “This loaf is forbidden to me like an offering.” The bread does not become holy, and others may eat it. Yet the Gemara establishes, by reasoning, that one who benefits from something he forbade to himself by a konam “has committed me’ilah,” and must bring an asham offering for me’ilah. So rules Maimonides (Laws of Me’ilah 4:9). Yet the prohibition here is only “bal yachel” (the prohibition of breaking a vow), with no connection to holiness. What is more, the Mishneh LaMelech (ibid.) notes that according to Maimonides, there seems to be no prohibition of me’ilah here at all, only the obligation of the offering. So why the asham? Because the person entered a domain he had himself made forbidden, and so crossed a boundary in reality.

3. The asham for theft

In Parashat Noach we saw Rabbi Shimon Shkop (Sha’arei Yosher, gate 5): the prohibition of theft rests first on human property law, and the Torah only adds “You shall not steal” on top of it. So the asham for theft too, brought by one who holds another’s money and falsely swears he does not have it, comes for the damage to reality, and not only for the prohibition.

Chatat and asham: the difference

Now the difference is clear:

• The chatat offering atones for the person who sinned. That is why it distinguishes between unintentional and deliberate sin: for a deliberate sin there is no atonement by offering.

• The asham offering repairs the reality that was damaged. For reality, it makes no difference whether the act was done by mistake or on purpose. That is why most asham offerings come for deliberate sins as well.

Perhaps this is the meaning of the word “asham,” as Nachmanides writes (Leviticus 5:15): from “shemamah,” desolation. The purification asham offerings too, of the nazirite and the metzora, come to repair a defective state, not to atone for a sin.

4. The conditional asham

The conditional asham (asham taluy) comes for a doubtful sin. For example: before a person there were two pieces, one of permitted fat and one of chelev (forbidden fat, whose deliberate consumption is punishable by karet). He ate one of them and does not know which. Perhaps he sinned, perhaps not. In such a case he brings a conditional asham.

The difficulty: Maimonides (Laws of Impurity of the Dead 9:12) writes that all doubts, “whether of impurity, forbidden foods, forbidden relations or Shabbat,” are forbidden only by the Sages. That is: by Torah law one may be lenient in a doubt, and the obligation to be strict is only rabbinic. The Ra’avad (ibid.) objects sharply: “This is a great error.” And many Acharonim asked: if Torah law permits eating a piece that may be chelev, one who ate it did not violate Torah law. So for what is he bringing an offering? According to Maimonides, the conditional asham has no place!

The Acharonim’s answer: some of them added a sentence in parentheses to Maimonides’ words: “Something whose deliberate violation is punishable by karet, its doubt is forbidden by the Torah, for one who does it must bring a conditional asham.” In their view, Maimonides is lenient only in an ordinary doubt. But when it is clear that a prohibition is present, and only which piece is forbidden is unknown (what is called “ikba issura”), the obligation to be strict is Torah law. Hence the conditional asham.

The rejection: but this answer is forced. The parentheses have no good source in the printed editions. What is more, in that very sentence Maimonides gives the examples of Shabbat and forbidden relations, which are punishable by karet, and writes that there too the doubt is forbidden only by the Sages. So the parentheses contradict his own words.

The explanation according to our approach: there is no need to change Maimonides’ words. True, by Torah law there is no obligation to be strict in a doubt, so one who ate a doubtful piece violated no commandment. But if the piece really was chelev, reality was damaged: chelev was eaten. And for damage to reality one brings an asham, even without a sin. That is exactly the conditional asham.

Why be strict in a doubt of Torah law?

This idea connects to the explanation of Rav Shlomo Zalman Auerbach (in his commentary on Shev Shmateta, shmateta 1), and before him Rabbi Shimon Shkop (Sha’arei Yosher, gate 2).

The background: according to Maimonides, the obligation to obey the Sages is Torah law, from the verse “You shall not turn aside” (Sefer HaMitzvot, principle 1). Nachmanides (in his glosses, ibid.) objected: if so, every doubt about a rabbinic prohibition is also a doubt about “You shall not turn aside,” which is Torah law. So why are we lenient in a rabbinic doubt?

The answer: there is a difference between the two kinds of prohibition.

• A Torah prohibition forbids something because it damages reality itself. When one eats chelev, the eating itself causes damage, even if one did not know it was chelev. So it contains two things: a commandment, and also damage to reality.

• A rabbinic prohibition is usually a fence: the Sages forbade something with no defect in itself, to keep us away from a Torah prohibition. For example, moving a hammer on Shabbat (muktzeh): moving it damages nothing in the world. The only problem is that we did not listen to the Sages. So it contains only a commandment.

And in a case of doubt, there is only a “doubtful commandment,” and “a doubtful commandment is no commandment”: one who does something that may be forbidden has not rebelled against a command. So in a rabbinic doubt, where there is only a commandment, we are lenient. And in a Torah doubt, the commandment does disappear, but the possible damage to reality remains. So we are strict. In other words, the obligation to be strict in a Torah doubt comes from the damage to reality, not from the commandment. And that is exactly what the conditional asham repairs.

This also explains the view of Tosafot (Keritot 17b): the conditional asham comes even for a double doubt (sfek sfeika: for example, a doubt whether the piece is forbidden, and another doubt whether he ate from it at all). Yet in a double doubt there is no obligation at all to be strict, not even rabbinic! The Acharonim raised this difficulty (Sha’ar HaMelech, Laws of Impurity of the Dead 9:12). But according to our approach it is understandable: the asham does not depend on whether there was an obligation to be strict. It depends only on whether damage to reality may have occurred.

Cheftza and gavra, action and result

In Parashat Bereshit we saw the distinction between mitzvot of action and mitzvot of result. Here a related distinction emerges: a prohibition in the object (be’cheftza: damage to the thing, to reality) and a prohibition in the person (be’gavra: the person’s sin). Its source is the Gemara (Nedarim 2b): a vow is a prohibition in the object, for the person forbids the object to himself; an oath is a prohibition in the person, for the person forbids himself from the object.

The Avnei Nezer (Orach Chaim 37) explains: a prohibition in the person is meant to protect the person, like the prohibition of eating creeping creatures: “Do not make yourselves detestable.” A prohibition in the object is meant to protect the thing itself, like terumah (the portion of the crop given to the Kohanim), which others may not eat, or Temple property.

And what is the difference between the two distinctions? Cheftza and gavra concern the purpose of the prohibition: what it protects. Action and result concern the halakhic definition: what exactly is forbidden. Usually the two match, but not always.

The bottom line

Not every sin is written in the halakha. Sometimes there is a “sin” without an explicit command, like entering another’s domain. And sometimes even what is written in the halakha only anchors something that exists before it. In every sin there are three layers: the damage to reality, for which the asham comes; the person’s sin, for which the chatat comes; and the punishment, which comes only for a deliberate sin. These are exactly the three stories of “Please say you are my sister.”