He said: And if with regard to one who intended to eat pork, and kosher lamb came up in his hand, like this woman who intended to violate her vow but in fact did not, the Torah nevertheless says: She requires atonement and forgiveness, all the more so does one who intended to eat pork and pork came up in his hand require atonement and forgiveness.
Both of these Talmudic cases of legally impossible sin involve mens rea, the intention to violate the law—whether a marriage or a vow—and actus reus, a completed action. It is only a failed attempt because the attempted sinner was not aware of all of the contextual circumstances of the crime. Much like a drug deal with artificial cocaine, a sufficient amount of both action and intention must exist to move the crime from the realm of thought and innocence to the domain of sin and liability.
The Talmud seems to conclude the impossible attempts of sin are inculpating. This conclusion is complicated by comments of Rabbi Hayyim Ibn Attar (1696–1743) in his famed biblical commentary Ohr ha-Hayyim.100 At the end of the book of Genesis, Joseph reconciles with his brothers. After being sold as a slave by his siblings and subsequently rising to political power in Egypt, Joseph addresses his brothers (Gen. 50:20), “And Joseph said unto them: ‘Fear not; for am I in the place of God? And as for you, ye meant evil against me; but God meant it for good, to bring to pass, as it is this day, to keep a great populace alive.’” Joseph assures his brothers that although they intended to kill him, their plot had fortuitous results since it led to Joseph’s rise to power.101 So Joseph forgives his brothers. On Joseph’s assertion of his brother’s innocence, Rabbi Hayyim Ibn Attar comments:
And you meant evil against me; but God meant it for Good, this is comparable to someone who intends to poison a friend, but instead (unknowingly) gives them wine—such as person is not liable anything. And they are exempt and innocent even in Heavenly Judgment.
This brief comment raised considerable controversy regarding the parameters of the liability for attempt. If the aforementioned passage of Talmud held the woman who attempted to transgress her vow and the man who attempted to commit adultery as guilty, then how can the Ohr ha-Hayyim claim that Joseph’s brothers are innocent? The principle of guilt for impossible attempts of sin, derived from the verse “Her Husband has made them void and the Lord forgave her,” (Numbers 13:30), should seemingly apply to the brothers of Joseph as well.102
Several answers are suggested in order to resolve the apparent contradiction between the Ohr ha-Hayyim’s comments and the Talmudic conception of attempt thwarted by legal impossibility. Rabbi Meir Dan Plotsky (1866–1928) in his brilliant work Kli Hemdah suggests that impossible attempts at sin are only inculpating when the sin in question is primarily between man and God.103 Since intent and action are equivalent in the eyes of God, impossible attempts are inculpating when the sin is an abrogation of a commandment against God. While God does not punish for thought alone, when it is coupled with action, as in the cases cited in the Talmud, there is liability. In contrast, sins that are primarily interpersonal, like the sibling feud between Joseph and his brothers, are only assessed based on the actual outcome. So in the case of Joseph and his brothers, since their attempt was not only unsuccessful but actually resulted in Joseph’s political elevation, the brothers were innocent. This approach establishes an important distinction in the rules of attempted sin whereby the target of the sin—man or God—drastically alters the underlying principles of liability.
Another suggested resolution for the comments of the Ohr ha-Hayyim was proposed by Rabbi Yosef Pazanavski (1875–1942) in his work Pardes Yosef where he explains that the case of Joseph’s brothers was not a typical case of impossible attempt. He contends that Joseph’s brothers had convened a formal court and sentenced Joseph to punishment.104 Their actions were not an intended sin but rather a reflection of their genuine conviction that Joseph deserved to be punished. This approach, which is more of a reflection of a particular form of Talmudic biblical interpretation, does not really change the way we think about attempt—just the way we think about Joseph’s brothers.
Four principles emerge from our discussion: (1) Thoughts alone are not inculpating as sins unless the very definition of the sin is one of thought. (2) Attempted sin which does not result in damage is not inculpating, though the localized case of attempted assault may be an exception. (3) Impossible attempts that involve both intent and a completed action do require atonement. (4) There may be a distinction between the target of the sin—namely man or God—when evaluating the liability of an impossible attempt.
Action Packed Crimes
The case of the Cannibal Cop raised important questions regarding the parameters of liability for attempted sin. To complete our discussion of sin in Jewish law, we must briefly consider one additional topic: intent. Namely, how much intent is necessary to find one liable for a properly executed sin? We have considered the attempted violation of sin without any outcome, but what of acts of sins without serious intent? In other words, how much thought—mens rea—is necessary to be culpable for a sinful act in Jewish law?
Like most Talmudic questions, intent is a complex issue. Halakhah makes several nuanced distinctions when considering different levels of intentionality for criminal acts. Talmudic terminology is abounding as well. Terms such as meizid , mitasek , shogeg , and oness all contribute to the complexity of this legal question, making it all the more inaccessible to the layperson.
In Stephen Hawking’s introduction to his 1988 classic A Brief History of Time, he was faced with a similar dilemma. “Someone told me that each equation I included in the book would halve the sales,” he writes. So, he explains, “I therefore resolved not to have any equations at all. In the end, however, I did put in one equation, Einstein’s famous equation E = mc2. I hope that this will not scare off half of my potential readers.”105 Like equations, Talmudic terminology does not win one a wide readership. Our discussion, however, will require more than just one famous equation or term. Nonetheless we will strive for clarity—hopefully without having to resort to simplicity or losing half of this book’s readers.
The role of intention in assessing sin in Jewish law could be its own dissertation. In fact, it has been. At least twice. In 1927 Michael Higger completed his dissertation “Intention in Talmudic Law” from Columbia University.106 Over eighty years later, Shana Strauch-Schick completed her dissertation from Yeshiva University on the subject, “Intention in the Babylonian Talmud: An Intellectual History.”107 In fact, Strauch-Schick was the first woman to be awarded a PhD in Talmud from the Orthodox institution. Together their works comprise over 300 pages on the subject. Both studies focus nearly exclusively on Talmudic law and do not discuss in great detail later rabbinic contributions to the subject. Our discussion will be extremely condensed while still including some later rabbinic opinions on the subject.
Sinning Like You Mean It: The Category of Meizid
Sinning with intention is called meizid . The term is related to the term nazid, which is a form of cooking. Much like the American idiom “what are you cooking up?” the Talmudic term also suggests deliberate and sinister preparation.108 How does Jewish law define sinister purposefulness? Frequently, discussions of intention are characterized by a negative theology of sorts—the act is defined by describing ways of behaving without intention. We understand intention by carefully defining what it is not. This isn’t just lazy scholarship; it is a problem acknowledged in Talmudic law. The Talmud explains that the only way we are able to distinguish between whether a sin was committed intentionally or unintentionally is by warning the potential sinner. As far as Jewish courts are concerned, sins are only considered intentional if, prior to committing the sin, the perpetrator is warned and clearly informed that the action about to be committed is against Jewish law.109 In the Jewish court system, sins are not subject to capital punishment unless they are committed following a proper warning. Of course, God knows whether a sin was intentional or accidental, but as far as the court is concerned a prop
er warning is necessary to ascertain intentionality definitively.
Oops, I Sinned: The Categories of Shogeg and Mitasek:
The categories of sin are not binary. It is not innocence versus guilt—rather there are a host of categories and gradations in assessing the severity of sin. As we have seen, in order to be strictly liable and punished for a sin, the person first must be warned by proper witnesses that the action he is about to commit is prohibited—and then proceed to violate that prohibition nonetheless. That is called sinning b-meizid—intentionally. Absent an actual warning, there are still several other categories of awareness that are necessary to assess a person’s liability for sin.
The term shogeg appears in the fourth chapter of Leviticus, —“if anyone shall sin through error.” If someone commits a sin b-shogeg, he is obligated to bring a sacrificial offering. What is the precise definition of an action done b-shogeg? The word means to go astray. Legally, however, a sin performed b-shogeg is one in which the action of sin was intended, but the action was not intended to be sinful. This is in contrast to an act that was not intended at all, which is referred to in Talmudic literature as mitasek . This is how Higger explains the definitions:
…”shogeg,” regarding sin in general, is not ignorance of law but rather an error of the understanding…. [I]n cases of “shogeg,” intent of the act does exist. The individual, due to an erroneous assumption, performs the act he has intended; but he has not intended to sin. In the cases of “mitasek” on the other hand, the individual has not at all performed the action he intended.110
As mentioned, a sin violated b-shogeg requires a sacrificial offering—a hatat—while a sin performed while mitasek is exempt from sacrificial obligation. Given that an action performed while mitasek was unintended, some rabbinic authorities question whether such actions can be considered sins at all.111 Sin or not, what emerges from these distinctions is the emphasis Jewish law places on even slight variations of mens rea—intentionality.
Each varying gradation of intentionality in sin requires a different process of penance.
CoerSIN: The Category of Oness
Aside from the previous categories of sin, which include deficiencies in mens rea and actus reus, there is a final categorical exception to the culpability of sin worth considering—duress. Sins committed while under duress are different from the previous categories since the act done under coercion does ostensibly include both an action and intention. Nonetheless, the Talmud provides a broad exclusion for coerced sins based on the verses in Deuteronomy (22:25–27), which excludes a betrothed woman from punishment if she were raped while married.112
The exemption of coercion is fairly straightforward; what is more complex is defining what constitutes an act performed under coercion. The source of the exemption of coercion involves someone’s being physically forced to sin, but what about someone who is just threatened with death or financial ruin? Most Halakhic decisors include actions done to prevent a threat of death within the exemption of coercion.113 However, most do not include an action done in order to avoid financial ruin within the exemption of duress.114 Maimonides is adamant that in order for an action to qualify for the categorical exemption of coercion, the person must first do everything possible to avoid the sin. He writes:
One who could, however, escape and flee from under the power of a wicked king and fails to do so is like a dog who returns to [lick] his vomit. He is considered as one who worships false gods willingly. He will be prevented from reaching the world to come and will descend to the lowest levels of Gehinnom.115
Maimonides’ strong language here is likely in response to the growing epidemic during his time of Jews’ being forced to convert to other religions in order to save their lives. Maimonides famously comforted the Moroccan Jewish community, who had converted to Islam in order to avoid death at the hand of the Almohad caliphate.116 In the passage cited above, Maimonides reminds that those faced with the prospect of coercion should first do everything possible to avoid sin rather than merely submitting due to the fact that an element of coercion is present.
Most earlier debates about the parameters of the definition of conversion involved Jews who faced pressure to convert by other religious entities, most commonly Christian and Muslim forces. In modern times, of course, such cases—while not entirely inconceivable—are exceedingly rare. Nonetheless the definition of coercion and its concomitant exemption from punishment is still a relevant topic in the Jewish community. In particular, the question of defining someone’s internal impulses, sexual or otherwise, as being so strong as to be considered coercion has important implications for those with homosexual orientations.117 While male sexual relations may be excluded from the exemption of coercion for other reasons,118 the concept of an internal impulse qualifying as Halakhic coercion is a topic still relevant and closely debated.
A Silver Lining for Our Thoughts
Mens rea matters. Every slight variation in the level and focus of intentionality while sinning can have drastic changes in the categorical consequences of the sin. Thought not only provides context but can be the very sin itself, as seen earlier in the Talmudic passage “[t]houghts of sin are worse than the sin itself.” While this passage was qualified to be legally applicable to only a limited set of sins, it can still be understood more broadly as a note of caution of the severity and power of thought alone. Thoughts can quickly morph into fantasies and preoccupations. Thoughts may not bear any legal consequences, but they can have dire experiential effects. The experiential effects of thought, however, need not be negative. In a playful repurposing of the Talmudic warning to be wary of thought about sin, Rabbi Hutner points out that a person’s preoccupations with aspirational holiness may have a greater impact on the individual than the actions of holiness itself. In his words:
And just as (regarding) the thoughts and imaginations of sin it is said (Yoma 29b) the thoughts of sin are worse than sin itself, similarly it seems reasonable to say that there are instances where our imaginations of holiness are greater than our very actions of holiness.
Thoughts of sin may be in some respects worse than sin itself, but our thoughts and aspirations of holiness may speak louder than the very acts of holiness to which we aspire. Thoughts matter. Our thoughts reflect deeper values and aspirations. When thoughts are sick, the diagnosis can be grave. But when thoughts are positive, they reveal something about ourselves that our actions may yet achieve.
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WHAT TO WEAR TO A SIN: NEGOTIATING WITH SIN
There is no virtue if there is no immorality.
—Fyodor Dostoevsky, The Brothers Karamazov
Negotiating with Sin
Imagine the following scenario. A train is barreling down the tracks while up ahead five men are working on the tracks. The trolley can be diverted to avoid hitting the workers, but the diversion would result in one person’s death. Should the train be diverted? This thought experiment, known as the Trolley Problem,119 was introduced by Philippa Foot, a renowned ethicist and granddaughter of President Grover Cleveland. This deceptively simple thought experiment inspired an entire discipline known as trolleyology. What if the only way to divert the train from hitting the five workers is to actively throw a fat man in front of the train? Such are the questions and scenarios contemplated by modern day trolleyologists. One philosopher joked that the host of variations and commentaries to the Trolley Problem “makes the Talmud look like CliffsNotes.”120
Aside from being an interesting thought experiment, the Trolley Problem also highlights some of the more interesting issues that arise regarding sin. Sin is most commonly thought of as a binary proposition. Either sin or don’t sin. It is a decision that can either be made or avoided. The Trolley Problem is a stark reminder that decisions related to sin are not always so simple.121 Morality is not always a choice between good and bad but, perhaps most frequently, it is a decision between two evils. The difficulty is only compounded when it is unclear which of the evils is worse. Jewish law is
replete with situations that require similar negotiations. Of course, like in any legal system the best course is to avoid sin altogether. But Judaism’s worldview is not quite so simplistic. As will be discussed, there are a variety of considerations and negotiations in the Jewish approach to sin.
Kosher Conundrums
If illness requires someone to eat non-kosher food, the Talmud (Yoma 83a) instructs that the person should eat the food with the smallest relative prohibition. Rabbi Moshe ibn Habib, the seventeenth-century Sefardic Chief Rabbi, was puzzled.122 What is the novelty of this Talmudic passage? Isn’t it obvious that even someone who is gravely ill should try to minimize the prohibitions being violated? His answer has important implications for the Jewish approach to sin. Rabbi ibn Habib explains that the Talmud is teaching that sin is not binary. Had it not been for this teaching, one might have presumed that once illness allowed consumption of a prohibited food, the level of prohibition was no longer relevant. Instead, the Talmud is teaching that sin is not binary—there are gradations. Even when circumstances allow the violation of certain prohibitions, that does not mean that now all prohibitions become moot. When possible, we always seek to minimize the gravity of sin. Certainly, as the Talmud allows, there are moments where violations are necessary—but even in such situations the differentiations between discrete orders of sin still remain relevant.
The Talmudic principle presented in Yoma is an example of how law still informs even when it is being broken. Law is not limited to proscribing actions; it even guides when and how we are supposed to violate normative law. To some degree this is analogous to statutes in American law such as the necessity doctrine in tort law123 which, while allowing instances where a private citizen can damage another’s property, still insists that care is taken to minimize those damages. The analogy is certainly not perfect, since in the case of Jewish law we are negotiating with entirely different prohibitions while in the case of the necessity doctrine we are just dealing with minimizing the cost of damages, but both are important examples of how the law even addresses the way in which the law, in certain contexts, should be broken.124
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