76. Edward Coke, Institutes, Part II (1797 edition), chapter 1, Folio 10.
77. For a longer rabbinic discussion on the implications of creating Halakhic categories through thought see Yosef Buxbaum, ed., Sefer ha-Zikaron le-Maran ha-Gerah Shmulevitz Zatzal (Jerusalem: Moriah, 1980), 161–163.
78. See Kiddushin ad loc. where the Talmud derives this based on Ezekiel 14:5.
79. See Maimonides, Guide for the Perplexed 3:8 who explains this passage in Yoma to be emphasizing the general elevation of the mind over the body. Since the mind is superior to the body, the thoughts of the mind also have graver repercussions than physical actions.
80. See Sefer Yereim 8. See however Maimonides, Sefer ha-Mitzvot, Shoresh (Foundation) 4, who does not include this in his count of the commandments. His reason, it should be noted, is not because it can only be transgressed in thought, but rather because it is a general prohibition that includes within it all religious violations.
81. In the first presentation of the Ten Commandments, the prohibition (Ex. 20:14) is phrased with the Hebrew term —do not covet, which, as explained by the Midrash (Mekhilta) is a prohibition that is only violated once an action, such as theft or even purchase according to some, has been carried out. The terms of this prohibition fall outside of the scope of our discussion, but according to most some action is necessary in order to be held accountable for this sin. The second presentation of the Ten Commandments features a different term, namely , which according to many applies even to thought alone. For more see Sefer ha-Hinukh 38, 416; Maimonides, Sefer ha-Mitzvot, Mitzvah (Commandment), 266.
82. See Hiddushei Aggadot of the Maharal on Kiddushin 39b.
83. See also Rabbi Yosef Engel (1858–1920) in his Talmudic glosses known as Gilyonei ha-Shas, Kiddushin, in which he echoes the distinction of Rabbi Loew. Menachem Meiri (1249–1306) also seems to make a similar distinction. Rabbeinu Bahya (1255–1340) in his biblical commentary (Deut. 29:18) also notes the contradiction between the Talmud in Kiddushin and the passage in Yoma. He resolves the contradiction by explaining that the Talmud in Yoma, describing the gravity of thinking about sin, only refers to someone who actually follows through with their fantasies. But, according to Rabbeinu Bahya, if the thoughts never materialize to action, the person will not be held responsible. One additional Mishnaic case has generated some discussion regarding liability for thought alone, namely the opinion of Beit Shammai that a bailee becomes liable for misappropriation of a deposit even through thought alone (Bava Metzia 43b, Kiddushin 42b). Seemingly, this would be an example of one being culpable for a thought crime. Rashi explains the opinion of Beit Shammai in this vein. See, however the comments of Tosafot (Bava Metzia s.v. “ha-hosheiv”) and Ritva, among others, who explain that according to Beit Shammai one is only culpable if words were spoken—thought alone, however, would not make one liable. Rabbi Yosef Engel, Gilyonei ha-Shas, in his comments on Bava Metzia, 43b explains that Rashi’s explanation of Beit Shammai also concedes that in order to be found culpable in court the bailee must have articulated his plans for misappropriation.
84. Rex v. Scofield, Cald. 397 (1784). Dr. Gideon Yaffe notes this was not always the case. Yaffe, Attempts (Oxford, Oxford University Press, 2012), 1.
85. See Gideon Yaffe, “Criminal Attempts,” The Yale Law Journal 124, no. 92 (2014): 101–103.
86. Yaffe, “Criminal Attempts,” 101.
87. Yaffe, Attempts, 21.
88. Yaffe, “Criminal Attempts,” 115.
89. See chapter 5 in Yaffe, Attempts.
90. See People v. Jaffe, 185 N.Y. 497, 78 N.E. 169 (1906).
91. People v. Dlugash, 41 N.Y.2d 725, 395 N.Y.S.2d 419, 363 N.E.2d 1155 (1977).
92. United States v. Crow, 164 F. 3d 229 (5th Cir. 1999).
93. United State v. Thomas, 13 U.S.C.M.A. 278 (1962).
94. Kadish et al., Criminal Law and Its Processes: Cases and Materials, 9th ed. (New York: Wolters Kluwer Law & Business, 2012), 646.
95. United State v. Thomas, 13 U.S.C.M.A. 278 (1962).
96. Sanhedrin 58b.
97. See Rama on Hoshen Mishpat 34:4, and the comment of the Vilna Gaon.
98. Jacob Bazak, “An Unsuccessful Attempt to Commit a Crime,” in Jewish Law Association Studies XVIII: The Bar-Ilan Conference Volume, ed. Joseph Fleishman (The Jewish Law Association, 2008), 11.
99. Translation from the William Davidson Talmud available to the public on the invaluable website Sefaria.
100. For more on the legacy of the work Ohr ha-Hayyim, see David Assaf, “‘A Heretic Who Has No Faith in the Great Ones of the Age’: The Clash Over the Honor of the Or Ha-Hayyim,” Modern Judaism 29, no. 2 (2009): 194–225.
101. See Sefer Hasidim 1425, and the comments of the Maharal Diskin on Gen. 50:20, in which he explains this verse to mean that Joseph’s brothers do not need to apologize to Joseph, but still require absolution before God since they did attempt to commit a sin.
102. This question on the comments of Ohr ha-Hayyim is further strengthened based on a related case of attempt found in the Talmud in Menahot 64a. The case in Menahot involves someone who went fishing on Shabbat, which is forbidden, but upon raising his fish net found the body of a live baby. While attempting to violate Shabbat, the life of a child was saved. In one analysis of the case the Talmud explains that the liability of the fisherman depends on a dispute between Rabbah and Ravah who debate whether the fisherman should be assessed based on his criminal intent (Ravah) or the life-saving outcome (Rabbah). Maimonides, Mishneh Torah, Hil. Shabbat 2:16 rules in accordance with Ravah but nonetheless concludes that the fisherman has some measure of liability (see Pri Megaddim on Orah Hayyim 328:8). Once again we see here that an impossible attempt, much like the brothers of Joseph, still carries liability. Why, then, does the Ohr ha-Hayyim conclude that the brothers of Joseph were innocent though their attempt did not result in the crime they had intended? See Binyan Shlomo on Hoshen Mishpat 2:5, and Jacob Bazak, “An Unsuccessful Attempt to Commit a Crime,” 13 for further analysis of this Talmudic passage and its implications for the principle of attempt.
103. See Kli Hemdah’s comment on Parshat Va-Yehi 3–4.
104. Many commentaries explain that Joseph’s brothers were in fact convinced of Joseph’s guilt and deserved punishment. See the comment of Seforno on Gen. 37:18 where he explains that Joseph’s brothers viewed him as an assailant, justifying their actions on the Talmudic principle (Sanhedrin 72a) that someone who attempts to attack you can be pre-emptively punished.
105. Stephen Hawking, A Brief History of Time (New York: Bantam Books, 1988), vi–vii.
106. Michael Higger, “Intention in Talmudic Law” (PhD diss., Columbia University, 1927).
107. Shana Strauch-Schick, “Intention in Talmudic Law: An Intellectual History” (PhD diss., Yeshiva University, 2011).
108. See Malbim’s Sefer ha-Carmel, entry Zayin Daled.
109. See Sanhedrin 8b.
110. Higger, “Intention,” 56.
111. See the Responsa of Rabbi Akiva Eiger, 1:8, where he differentiates between an action performed while mitasek on Shabbat versus all other such actions. According to Rabbi Eiger, actions performed while mitasek are considered a sin—they are just exempt from a sacrificial obligation of penance. On Shabbat, however, an action performed while mitasek is not even considered a sin at all since on Shabbat actions require a higher level of intentionality to be considered a wrongdoing. This distinction has been widely debated among later rabbinic authorities.
112. See Bava Kamma 28b. See entry in the Encyclopedia Talmudit, vol. 1, Oness, paragraphs 347–350. See also Maimonides, Mishneh Torah, Hil. Yesodei ha-Torah 5:4, which cites an additional source from the interpretation of Torat Kohanim to the prohibition of delivering a child to idolatry (See Lev. 20:3).
113. See Yad ha-Melech’s comment on Maimonides, Hil. Yesodei ha-Torah 5:6.
114. See Respona Rivash 387.
115. Maimonides, Hil. Yesodei ha-Torah 5:6.
116. For more on the histor
y of this letter, known as Iggeret ha-Shemad, and its relation to the rest of Maimonides’ writings see Haym Soloveitchik, Collected Essays Vol. 2 (Portland, OR: The Littman Library of Jewish Civilization, 2014), 288–364.
117. For a consideration of homosexuality in light of the exemption of duress in Jewish law, see Chaim Rapoport, Judaism and Homosexuality: An Authentic Orthodox View (Portland, OR: Vallentine Mitchell, 2004), 61–67. In particular, see ibid., 65, where he cites the views of Rabbi Zadok Ha-Kohen in this legal discussion.
118. The Talmud in Yevamot 53b cites the opinion of Rava that male sexual arousal necessarily always involves implicit consent, so male sex acts are not subject to the exemption of coercion in Jewish law. For further discussion and additional views on this see the comments of Tosafot on Yevamot 53b–54a, s.v. “eyn oness”; Maimonides, Mishneh Torah, Hil. Issurei Biah 1:9; Mishnah Sanhedrin 20:3. See also the literature cited by Rapoport, Judaism and Homsexuality, 61–67.
119. Philippa Foot, “The Problem of Abortion and the Doctrine of Double Effect,” Oxford Review 5 (1967): 5–15.
120. Kwame Anthony Appiah, Experiments in Ethics (Cambridge: Harvard University Press, 2008), 91.
121. For an unexpected but entertaining application of the Trolley Problem, see Robert Carlock, dir., Unbreakable Kimmy Schmidt, Season 3, episode 12, “Kimmy and the Trolley Problem!” aired May 19, 2017 on Netflix.
122. See his comments on Yoma 83a in his Tosefet Yom ha-Kippurim.
123. Vincent v. Lake Erie Transportation Co., 109 Minn. 456, 124 N.W. 221 (1910).
124. Regarding Halakhic direction in minimizing the violation of Halakhah, see Benjamin Brown, “‘Ha-Ba’al Bayit’- R’ Yisrael Meir Ha-Kohen, ‘Ha-Hafetz Hayyim’,” in The Gdoilim, ed. Benjamin Brown and Nissim Leon (Jerusalem: Magnes Press, 2017), 140. Note particularly its discussion of the work Mahaneh Yisrael (The Camp of Israel) by Rabbi Yisrael Meir Kagan (Vilna, 1881), which is a Halakhic compendium for Jewish soldiers in the Russian army. The volume includes a lot of Halakhic direction for soldiers in compromising situations such as someone who cannot pray all of the normal prayers or who only has access to non-kosher food. For an abbreviated English adaptation of Mahaneh Yisrael published by a student of Rabbi Kagan’s on behalf of Jewish-American soldiers serving in World War II, see Rabbi Moses M. Yoshor, Israel in the Ranks (New York: Yeshivah Chofetz Chaim, 1943).
125. See Rabbi Wasserman’s Kovetz Ma’amarim, 40–41.
126. See Shaul Magid, Hasidism on the Margin: Reconciliation, Antinomianism, and Messianism in Izbica/Radzin Hasidism (Madison: University of Wisconsin Press, 2003), xx and xxn18; Morris M. Fairstein, All Is in the Hands of Heaven: The Teaching of Rabbi Mordechai Joseph Liener of Izbica (Hoboken, NJ: Ktav Publishing House, 1989); and idem., “Kotsk-Izbica Dispute: Theological or Personal?” Kabbalah 17 (2008): 75–79.
127. For decades, the role of Rabbi Yaakov Leiner, author of the Beit Yaakov, was overlooked in the academic and religious community, a sentiment I personally heard bemoaned years ago by the Rosh Yeshiva of Yeshivat Kerem B’Yavneh, Rabbi Mendel Blachman. The academic community is indebted to Ora Wiskind-Elper, whose Wisdom of the Heart: The Teachings of Rabbi Ya’akov of Izbica-Radzyn (Philadelphia: The Jewish Publication Society, 2010) masterfully presents the Hasidic approach of the Beit Yaakov.
128. As opposed to his father, Rabbi Gershon Henokh has received careful attention regarding his role in radicalizing Izbica Hasidut. The messianic activities of Rabbi Gershon Henokh, including his efforts to renew the practice of wearing tekhelet as well as assembling a Talmudic commentary on the Order of Tahorot, which deals with ritual impurity, brought additional controversy and attention to Izbica Hasidut. For more on his life and theology see Shaul Magid, “‘A Thread of Blue’: Rabbi Gershon Henoch Leiner of Radzyń and his Search for Continuity in Response to Modernity,” Polin 11 (1998), as well as his more comprehensive Hasidism on the Margin.
129. The works of Rabbi Zadok were first presented in English to the academic community by my teacher Rabbi Yaakov Elman. See Yaakov Elman, “R. Zadok Hakohen on the History of Halakhah,” Tradition 21, no. 4 (Fall 1985): 1–26; Yaakov Elman, “Reb Zadok Hakohen of Lublin on Prophecy in the Halakhic Process,” Jewish Law Association Studies 1 (1985): 1–16; Yaakov Elman, “The History of Gentile Wisdom According to R. Zadok ha-Kohen of Lublin,” Journal of Jewish Thought and Philosophy 3, no. 1 (1993): 153–187; Yaakov Elman, “Progressive Derash and Retrospective Peshat: Nonhalakhic Considerations in Talmud Torah,” in Modern Scholarship in the Study of Torah: Contributions and Limitations, ed. Shalom Carmy (Northvale, NJ: Jason Aronson, 1996), 227–87; and Yaakov Elman, “The Rebirth of Omnisignificant Biblical Exegesis in the Nineteenth and Twentieth Centuries,” Jewish Studies Internet Journal 2 (2003): 199–249. Two other crucial works on Rabbi Zadok bear mentioning, Alan Brill, Thinking God: The Mysticism of Rabbi Zadok of Lublin (Jersey City, NJ: Ktav Publishing House, 2002) and the incisive dissertation of the elusive Amira Liwer, “Oral Torah in the Writings of Reb Zadok ha-Kohen of Lublin” (PhD diss., Hebrew University, 2006; Hebrew).
130. My decision to exclude Rabbi Leible Eiger from this collective Hasidic legacy is deliberate. The style and focus of his works is markedly different than the other Hasidic leaders mentioned. Nonetheless, his scholarship and contextual role within the larger Izbica tradition merits attention and sadly remains a glaring desideratum within the academic community. For more on the life of Rabbi Leible, see Shimon Hirschler, Yehudah le-Kadsho, 3 vols. (Tel Aviv: Shem Olam, 1999).
131. For example, see Mei ha-Shiloah, vol. 1 (Mishur, 1990), 27, 245. For instances of this phrase in the work of Rabbi Zadok, see his Resisei Laylah (Machon Har Bracha, 2002), 41, 50. See also his Dover Tzedek (Machon Har Bracha, 2007), 9.
132. Fairstein, All Is in the Hands of Heaven, 36.
133. Herzl Hefter, “‘In God’s Hands’: The Religious Phenomenology of R. Mordechai Yosef of Izbica,” Tradition 46, no. 1 (Spring 2013): 50.
134. All of the former examples are discussed by Herzl, “In God’s Hands.” The story of Aher is interpreted in this context in Rabbi Zadok’s Sefer Zikhronot (Machon Har Bracha, 2002), 293:11.
135. See “In God’s Hand’s,” 52–54, for interesting parallels in the writings of Rudolf Otto. For a much more comprehensive examination of the role of free will in Izbica see Aviezer Cohen, “Self-Consciousness in Mei ha-Shiloah as the Nexus Between God and Man” (PhD diss., Ben-Gurion University of the Negev, 2006; Hebrew).
136. See for instance Rabbi Zadok’s Tzidkat Ha-Tzadik 40, which cites the Lurianic work Arbeh Me’ot Shekel 91b. It is interesting to note that Rabbi Zadok, rather than citing his rebbe, invokes this Lurianic work as a basis for the more radical determinism found in Izbica. See also Likkutei Ma’amarim (Machon Har Bracha, 2007), 183. In some instances Rabbi Zadok also cites a parable of the Baal Shem Tov to explain this concept, see Pri Tzadik Bamidbar, Rosh Chodesh Av.
137. Magid, Hasidism on the Margin, 248.
138. See also Brill, Thinking God, 199–200 where he suggests that the more radical applications of Hasidut in everyday life only flourished as a rejection of the “bourgeois morality in the 1930s.” In this view, subversive extra-Halakhic notions only emerged when “the traditional way of life began to break down in confrontation with the libertine secular life of the cities.”
139. Notably, in Rabbi Zadok’s first Hasidic work, Tzidkat Ha-Tzadik, passages 162–163, were censored by his students. For more see Brill, Thinking God, 181. For other examples of students censoring the work of their teacher, see Marc Shapiro, Changing the Immutable: How Orthodox Judaism Rewrites its History (Portland, OR: The Littman Library of Jewish Civilization, 2015), 160–183, which discusses this phenomenon in the works of Rabbi Kook.
140. See Hefter, “‘In God’s Hands,’” 52.
141. Pri Tzadik, Nasso 15, citing Rabbi Mordekhai Yosef Leiner.
142. For a similar distinction, see Wiskind-Elper, Wisdom of the Heart, 102–103.
143. Rabbi Elliot
Cosgrove, “Religion Beyond the Limits of Reason Alone,” in Go Forth! Selected Sermons by Rabbi Elliot J. Cosgrove (Park Avenue Synagogue, 2013), http://pasyn.org/resources/sermons/%5Bfield_dateline-date%5D-52.
144. Jennie Rosenfeld, “Talmudic Re-Readings: Toward a Modern Orthodox Sexual Ethic” (PhD diss., The City University of New York, 2008), 122.
145. See ibid., 108–109, where Rosenfeld notes the centrality of this phrase in Rabbi Zadok’s thought and also mentions the strange context, a discussion around the marriage right of a woman who is half-slave and half-free, which appears in Tractate Gittin. See my B-Rogez Rahem Tizkor (Brooklyn: HaDaf Printing, 2015), 47–50. See also the end of chapter 9 in this work for a suggested explanation of this phrase’s strange contextual appearance as well as a discussion on the permissibility of voluntarily entering into situations of religious struggle.
146. See Shmuel Ettinger, “The Hasidic Movement—Reality and Ideals,” in Essential Papers on Hasidism: Origins to Present, ed. Gershon David Hundert (New York: New York University Press, 1991), 226–243.
147. Haym Soloveitchik, “Rupture and Reconstruction: The Transformation of Contemporary Orthodoxy,” Tradition 28, no. 4 (Summer 1994): 64–130.
148. Soloveitchik, “Rupture and Reconstruction,” 66.
149. Ibid., 72.
150. Ibid., 65.
151. Ibid., 103.
152. See Steven Schwarzchild, “An Introduction to the thought of R. Isaac Hutner,” Modern Judaism 5, no. 3 (February 1985): 235–277. Some added consideration regarding Rabbi Hutner’s connection to Rabbi Zadok can be found in the exhaustive work of Rabbi Shlomo Kasirer, “Repentance in the Thought of R. Isaac Hutner” (PhD diss., Bar-Ilan University, 2009; Hebrew), 198–199.
153. Pahad Yitzhak: Igrot U-Ketavim, Letter 9.
154. Igrot Moshe, Orah Hayyim, 2:95. See also Igrot Moshe, Yoreh Deah 2:33 regarding removing a yarmulke at, what seems to be describing a nightclub. In a recent collection of Rabbi Shlomo Aviner’s text message responses to Halakhic questions, he cites this ruling of Rabbi Moshe as precedent for his own similar conclusion. See Piskei Shlomo, vol. 1 (Beit El, 2013), 15.
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