The Limits of Halakha: A Transgression for the Sake of Heaven

The Dilemma of Lot’s Daughters

In our parasha, Lot and his two daughters flee Sodom as it is overturned. They are left alone in a cave. The daughters think the whole world has been destroyed.

In such a situation they face a hard dilemma. One option: keep halakha and morality – and so bring human history to an end. A second option: continue human existence – at the price of a deeply problematic act.

They decided that human existence outweighs the prohibition of incest. Thus Ammon and Moab were born.

To understand this kind of reasoning, let us turn to a halakhic example from another area.

"Do We Tell a Person to Sin So That His Fellow Will Benefit?"

The Gemara in Tractate Shabbat, page 4a, discusses a person who stuck dough for bread onto the wall of an oven on Shabbat. If the dough stays in the oven and bakes, he will violate the forbidden labor of baking. May he remove it – that is, take it out of the oven – before it bakes? The Gemara distinguishes between three cases.

1. He stuck it on deliberately, that is, intentionally and knowing that it is forbidden. The Sages permitted him to remove the dough so that he will not become liable to stoning – the death penalty the court imposes on one who desecrates Shabbat deliberately. In other words, he is permitted to violate a minor prohibition1 in order to escape the penalty of stoning.2

But this permission does not come from the ordinary laws of saving life. Saving life permits violating prohibitions when a person’s life is in external danger – illness, drowning and the like. Here the danger is not external. It stems from a duty that the Torah itself imposes on the court: to execute one who has desecrated Shabbat deliberately. The person brought the danger upon himself through his sin. Formally, this is not "saving life" but "deserved punishment."

So what did the Sages rely on? They took into account the state of mind of a person who sees that a death sentence is about to be passed on him. Such a person cannot withstand the urge to save himself. And it is not reasonable to demand that he give himself up to death helplessly. That is why the Sages did not impose the prohibition in this case: it is clear from the outset that the person will not be able to abide by the decree, so there is no point in making it.

2. He stuck it on unintentionally, and then remembered. The Sages permitted him to remove the dough himself, so that he will not come to the prohibition of baking. And although he began unintentionally, he is not obligated to bring a chatat – the offering brought by one who sinned unintentionally. The chatat obligation requires that both the beginning and the end of the act be unintentional. Here, once he knows, if he leaves the dough, he will complete the baking deliberately.

3. He stuck it on unintentionally, and does not know that it must be removed. Rav Shila suggests that others remove the dough in his place, to save him from the prohibition. Rav Sheshet rejects this: "Do we tell a person to sin so that his fellow will benefit?" That is, there is no permission to violate a prohibition yourself in order to save your fellow from a prohibition.

However, several Rishonim learn from another passage, in Tractate Eruvin page 32b, that sometimes a person is permitted to violate a minor prohibition: so that his fellow will be saved from a severe prohibition, or to enable a public mitzvah, or a great mitzvah.

In any event, we see that there is room for judgment: there are situations in which transgressions are committed. When the price is heavy, it is legitimate – and perhaps even desirable – to commit a transgression. The situation of Lot’s daughters was certainly an extreme one. Therefore their act should be viewed positively, or at least with understanding.

The Sages’ View of the Act of Lot’s Daughters

The Gemara in Tractate Nazir, page 23b, explains that the Sages saw the act of Lot’s daughters as a mitzvah. Lot himself, by contrast, is considered a sinner, because he committed his act deliberately – at least on the second night. Apparently Lot, unlike his daughters, knew that the world had not been destroyed. And so the very same act counts as a transgression in his case.

What Is an "Aveirah Lishmah"?

In halakhic terminology, a situation in which we are compelled to commit a transgression for a positive goal is called "aveirah lishmah," a transgression for the sake of Heaven.

Halakha does not recognize the legitimacy of the transgression – otherwise it would not be a transgression at all. One who desecrates Shabbat to save a life is not committing an "aveirah lishmah," but a mitzvah.

An "aveirah lishmah" thus points to a tension. On the one hand, on the formal halakhic level, there is a transgression here. On the other hand, on the level of values – the level of values that stands above the details of the laws – there is a positive act here, perhaps even a necessary one. Can such an act be given legitimacy?

The Methodological Problem

Is halakha the place where this discussion should take place at all? There is a dilemma here:

• If halakha permits the act – it is not an aveirah lishmah but the fulfillment of a mitzvah, like saving life on Shabbat.

• And if halakha does not permit it – why should it grant it legitimacy?

For this reason some commentators emptied the concept of "aveirah lishmah" of its content, and turned it into an internal halakhic term suited to situations like saving life on Shabbat. But the sources in the Talmud show that this is a different situation – extra-halakhic in its essence.

Two conceptions can be proposed in principle:

a. The discussion takes place in a broader sphere: the Torah. From the standpoint of halakha, there is a transgression here, but from the standpoint of the Torah, this is a positive act. When there is a conflict, one can say that halakha gives way before the Torah. On this view, halakha does not contain everything the Torah requires: the Torah has binding directives that lie outside halakha.

b. The discussion takes place within halakha, but not everything halakha forbids has the same status. There are forbidden acts that are real transgressions: wrong and illegitimate. And there are acts that are not correct from the standpoint of halakha, but are legitimate: wrong, yet legitimate. On this view a boundary problem arises: how do we classify such acts? It seems they cannot be classified with halakhic tools, since by definition halakha forbids them.

Can One Value Be Weighed against Another?

Even if we accept that there are "legitimate" transgressions, a hard question remains: how do we decide when a particular value outweighs a prohibition? Lot’s daughters weighed the continuation of humanity against the prohibition of incest. But on what scales does one weigh such a thing?

Here there is a difficulty of principle. Values are not like prices. One can compare two products by their price, because they have a common measure: money. Values have no such common measure. Philosophers call this "incommensurability" – the impossibility of measuring things in the same unit.

Why? Because a value is a starting point. If I ask, "Why is it forbidden to lie?" one can answer, "Because one must respect others." But if I ask, "Why must one respect others?" we will eventually reach a point where there is no further answer: it is simply a value I accept. If every value needed to be explained by another value, the chain would never end.

And since each value stands on its own, there is no single scale on which one can check which value weighs more.3

The Ba’al HaIkkarim, Rav Kook and the Netziv

According to their view, every act is judged by its motive, and not by its result. If the intention is for the sake of Heaven, the act is positive. On this view, the halakhic criterion loses its meaning.

Among themselves there is a disagreement: according to the Ba’al HaIkkarim, there is no obligation to commit an "aveirah lishmah." According to Rav Kook and the Netziv, it is a full obligation.

"It Is a Time to Act for God; They Have Annulled Your Torah"

At first glance we find in the Sages a principle similar to "aveirah lishmah": "It is a time to act for God; they have annulled Your Torah." But this is a different principle. There, we are dealing with an enactment of an authorized court, which may establish that a certain prohibition must be violated. Here, we are dealing with the act of an individual who decides – without halakhic instruction – to commit a transgression in order to save an important value.

The conclusion. The Sages saw a mitzvah in an act that is a transgression from a halakhic standpoint. "Aveirah lishmah" exposes a tension between the formal halakhic level and the level of values – and places a person before a hard decision: between values that have no common measure.