Talmudology on the Parsha, Massai: The Not So Dead Sea

במדבר 34:12

וְיָרַד הַגְּבוּל הַיַּרְדֵּנָה וְהָיוּ תוֹצְאֹתָיו יָם הַמֶּלַח זֹאת תִּהְיֶה לָכֶם הָאָרֶץ לִגְבֻלֹתֶיהָ סָבִיב׃

The boundary shall then descend along the Jordan and terminate at the Dead Sea.
That shall be your land as defined by its boundaries on all sides.

The Dead Sea is mentioned in the Torah several times. It first appears in Bereshit (14:3) when five kings joined together in a battle “at the Valley of Siddim, now the Dead Sea.”

כל־אֵלֶּה חָבְרוּ אֶל־עֵמֶק הַשִּׂדִּים הוּא יָם הַמֶּלַח

Later in the Bible the Dead Sea is called יָם הָעֲרָבָה and הַיָּם הַקַּדְמֹנִי, while in the Talmud it is called יַמָּא דִסְדוֹם.

The Desolate Dead Sea

In masechet Nazir, the Dead Sea is described as an ultimate place of no return. There the Talmud asks about the fate of various offerings (or money set aside to buy these offerings) that were designated to be brought to the Temple in Jerusalem, but which for one reason or another, could not in the end be donated.  Consider for example a father who declared that his son would be a nazarite, and set aside money to bring the associated Temple offerings. However, the son decided he did not want the ascetic life thank you very much, and declined to become a nazarite. What then should become of the money set aside? If the father had set aside the money specifically for the purchase of a chatas - חטאת - a sin offering - he is rather out of luck.  The Mishnah states that the money must be cast into the Dead Sea - that is, it cannot be used for any purpose. (This is because the הטאת can never be offered as a voluntary sacrifice, and since the son will not become a nazir, the money cannot be used for a voluntary sacrifice- or any other purpose.)

משנה נזיר כח, ב

היו לו מעות סתומין יפלו לנדבה מעות מפורשים דמי חטאת ילכו לים המלח

If he had set aside unspecified funds [for his son to bring as a nazir, and the son declined to follow through], they may be used for voluntary offerings. If he had set aside specified money [for a chatas sacrifice], the money is thrown into the Dead Sea...   

The Formation of the Dead Sea

The Dead Sea lies on a boundary between the Arabian tectonic plate and the Sinai sub-plate, which is part of the larger African tectonic plate. In 1996 Garfunkel and Ben-Avraham published a paper on The Structure of the Dead Sea basin. They note that the Dead Sea rift was formed when the two tectonic plates moved apart from each other, creating a hole in the middle.  The Dead Sea is one of the most saline lakes in the world, containing more than 30% of dissolved salts, mostly sodium, calcium and magnesium, potassium and bromine; it is almost ten times more saline than the oceans. The lake lies about 400m below sea level, and in  some places the lake is as deep as 300m (for those of you in the US, that is almost 1,000 feet). It is these salts that make the lake so seemingly inhospitable to life, and explain why the rabbis chose the Dead Sea as an example (perhaps the example) of the place to throw the money set aside for a sacrifice that could not be brought. Once the coins were thrown into the murky depths of the lake, they would sink into the silt, rust, and never be found. The Dead Sea is a metaphor for a place without life, which is probably why the Mishnah also rules that into it should be thrown any vessel on which there is an idolatrous images. They will simply never be found again. 

 עבודה זרה מב, ב 

המוצא כלים ועליהם צורת חמה, צורת לבנה, צורת דרקון - יוליכם לים המלח

If one finds vessels on which is the likeness of the sun, the moon or a dragon [all of which were used for idolatry], the vessels should be thrown into the Dead Sea...

“The name “Dead Sea” is of relatively recent vintage. It was first introduced by Greek and Latin writers such as Pausanias (160-180 AD.) Galen (2nd century AD) and Trogus Pompeius 2nd century AD.)”

— Arie Nissenbaum. Life in a Dead Sea: Fables, Allegories, and Scientific Search. BioScience 1979: 29 (3). p153.

Life in the Dead Sea

It is fascinating to note that while we refer to the lake as the Dead Sea, as we have seen, it is not called this in the Hebrew Bible or the Talmud. Rather, it is the Salt Sea - ים המלח - with no reference to anything about it being dead.  This choice turns out to have been a good one, for although the lake seems to be devoid of any life, there is life within it.  

“The increased salinity and the elevated concentration of divalent ions make the Dead Sea an extreme environment that is not tolerated by most organisms. This is reflected in a generally low diversity and very low abundance of microorganisms.”

— Ionescu D, Siebert C, Polerecky L, Munwes YY, Lott C, et al. (2012) Microbial and Chemical Characterization of Underwater Fresh Water Springs in the Dead Sea. PLoS ONE 7(6): e38319.

Microorganisms were first discovered in the Dead Sea in the 1930s, and since then bacteria have been isolated in both the sediment and the water, albeit at low concentrations.  However a series of dives in June 2010 revealed a complex system of freshwater springs that feed the lake, and surrounding these springs are bacterial communities with much higher densities, and much greater cell diversity, than was previously known. (You can watch a two-minute video of divers at the bottom of the Dead Sea here. It is amazing to realize that they are the first humans to see the depths of the Dead Sea).  An international team of researchers described the findings from these dives in a paper titled Microbial and Chemical Characterization of Underwater Freshwater Springs in the Dead Sea, that was published in 2012.  The colonies of cells that surround the freshwater springs are up to 100 times more dense than those found in the ambient water of the Dead Sea, and include bacteria that consume sulfides, and those that metabolize iron and nitrates. The authors conclude that the underwater system of springs that feed the Dead Sea are an "unknown source of diversity and metabolic potential."  

Graphical representation of the sequence frequency in the studied Dead Sea samples, showing major detected phyla and families of different functional groups of Bacteria. From Ionescu D, Siebert C, Polerecky L, Munwes YY, Lott C, et al. (2012) Microbial and Chemical Characterization of Underwater Fresh Water Springs in the Dead Sea. PLoS ONE 7(6): e38319.

Despite these findings of life, the Dead Sea is still in trouble. Its level is dropping at the rate of about three feet per year, and its surface area is now only 600 Km2, down from over 1,000 Km2 in the 1930s.  The prophecy of Ezekiel (47:8-9) that the water of the Dead Sea would be replaced with fresh water in which great numbers of fish will live is still a long, long way off.  

יחזקאל פרק מז, ח-ט 

ויאמר אלי המים האלה יוצאים אל הגלילה הקדמונה וירדו על הערבה ובאו הימה אל הימה המוצאים ונרפאו ונרפו המים:  והיה כל נפש חיה אשר ישרץ אל כל אשר יבוא שם נחלים יחיה והיה הדגה רבה מאד כי באו שמה המים האלה וירפאו וחי כל אשר יבוא שמה הנחל

He said to me, "This water flows toward the eastern region and goes down into the Arabah, where it enters the [Dead] Sea. When it empties into the sea, the salty water there becomes fresh.Swarms of living creatures will live wherever the river flows. There will be large numbers of fish, because this water flows there and makes the salt water fresh; so where the river flows everything will live...(Ez. 47:8-9)

Talmudology on the Parsha, Mattot: Books Named for Women

במדבר 32:41

וְיָאִיר בֶּן־מְנַשֶּׁה הָלַךְ וַיִּלְכֹּד אֶת־חַותֵיהֶם וַיִּקְרָא אֶתְהֶן חַות יָאִיר׃

Jair son of Manasseh went and captured their villages, which he renamed Chavot Yair.

A Book Named for Bubbe

Yair Chaim Bachrach (?1639-1702) was an important rabbinic figure who lived for most of his life in Worms and Mainz. He had married Eva, the granddaughter of the Maharal of Prague, but he was also deeply influenced by his own grandparents, especially his paternal grandmother Chava. In fact, Chava had such an influence over Rabbi Yair that he named his book after her.

Chavot Yair, introduction.

Aside from this, there is another reason that I chose to call this [book Chavot Yair]. It is in memory of my pious grandmother Chava, the mother of my late father Shimon, and this is most fitting…For my grandmother was the granddaughter of the Gaon Rabbi Leib Prague…She was very learned and unique among her peers in her knowledge of Torah, she learned Midrash Rabbah which had no commentaries using her own approach and insights. And in many places she improved on the commentary [to the Midrash Rabbah called] Matnat Kehuna [by Yissachar Katz], and her own commentary was such that anyone who read it would understand that hers was superior. In many places I have quoted her insights in her name, for example in my commentary on the Machzor and on selichot and on Rashi’s commentary on the Bible…in many places the leading figures of our generation could not provide an explanation, until she came along and provided a solution.

She had outstanding penmanship and used beautiful language. She was also widely recognized for her piety, and it is simply not possible to describe all of her qualities. She was widowed at the age of only thirty…in 1650 she moved with my father to Worms when he became rabbi there, and stayed with him for about a year. Then she tried to travel to Israel, but she died in Sophia and the respect that was given to her there after her death was remarkable, for she was well known there and had an impeccable reputation…it is also impossible to overstate the respect that her two brothers showed to their sister.

As Zeev Zuckerman notes in his impressive five volume Otzar Piloas Hatorah (best described as a sort of Ripley’s Believe It or Not on the Torah,) there are other examples of rabbinic works named for women. Rabbi Yechezkel Landau (1713-1793) who served as chief rabbi of Prague, wrote a commentary on Pesachim called צל׳ח – ציון לנפש חיה. It was named for his mother, Chaya, as he described in his introduction.

Seven years ago, I was worthy to call my work נודע ביהודה (Nodah B’yehudah, lit. Known in Judah), named for my father…and now I am able to fulfil my vow for “my mother in wisdom,” my modest and righteous mother. I am calling this new book [ציון לנפש חיה “A sign for the soul of Chaya”], to remember her pure soul.

A Book named for Mom

Megilat Esther - the biblical book - is of course named for a woman. But there is another Megilat Esther named for another Esther. It was written by Yizhak DeLion (c.1495-c.1545) and is a commentary on Maimonides’ Sefer Hamitzvot. DeLion gave two reasons for the book’s name. First, it was a defence of Maimonides from criticisms of his work made by Nachmanides. The author had uncovered hidden reasoning in Maimonides, and to emphasise this, the name of the book is a play on the root ס–ת–ר meaning hidden.

The second reason was somewhat more personal.

It is to allow me to remember each and every day of my life the sadness of having lost my wise and saintly mother, Esther, may her sould be in Eden. For while I was busy writing this and another book, she was taken from me and called before the King of Kings, the Holy One, Bleesed be He. So I decided to call this book Megillat Esther for these two reasons.

הקדמא מגילת אסתר על ספר המצוות

וקראתי שם זה הספר מגלת אסתר. וזה לשתי סבות. האחת כי בו יגלו ויתפרסמו הסתר סברות הרב בי"ד שרשיו אשר יסד בבואו למנות המצות. והשנית לזכר לי כל ימי עולם עניי ויגוני מפטירת הצדקת המשכלת הורתי מרת אסתר נפשה עדן, כי בהיותי טרוד בעיון שני ספרים אלה לוקחה מעמי ונקראה לבא אל המלך מלך מלכי המלכים הקב"ה, לכן אמרתי לקרות לחבורי זה מגלת אסתר לשתי אלה הכונות אשר בזה השם נכללות

The introduction to many early Hebrew books are gems that should be more widely read. They introduce us to the author’s methods and goals, and often tell us about people who would have otherwise been forgotten. And so we say to Chava, grandmother of Yair Chaim Bachrach, Chaya, mother of Yechezkel Landau of Prague and Esther, mother of Yizhak DeLion, you are not forgotten, and your memory lives on through the scholarship of your children.

יהי זכרן ברוך

Bava Basra 34 ~ Might Makes Right

Bava Basra is full of the laws relating to property and rights of ownership. On this page, the Talmud addresses a case in which two people claim ownership of a property, but neither has evidence nor presumptive ownership. What should be done? Rav Nachman offers an answer, which is not really an answer at all.

בבא בתרא לד, ב

זֶה אוֹמֵר: ״שֶׁל אֲבוֹתַי״, וְזֶה אוֹמֵר: ״שֶׁל אֲבוֹתַי״ – אָמַר רַב נַחְמָן: כֹּל דְּאַלִּים גָּבַר

There was an incident where two people dispute the ownership of property. This one says: It belonged to my ancestors and I inherited it from them, and that one says: It belonged to my ancestors and I inherited it from them. Rav Nachman said: Whoever is stronger prevails.

Last week, on the way into shul, I asked a friend how he translated כֹּל דְּאַלִּים גָּבַר. His answer: “The law of the Jungle.” As we shall see, that’s a pretty good translation, but this is of course entirely unsatisfactory from a legal perspective. Didn’t we learn in kindergarten that might does not make right?? How might we understand Rav Nachman’s rather unfair ruling?

For some help, let’s turn to Joseph David’s 2006 paper The One Who Is More Violent Prevails- Law and Violence from a Talmudic Legal Perspective, published in the Canadian Journal of Law and Jurisprudence.

The Duel and the Ordeal

He begins by pointing out that in many societies, the duel was recognized as a legal procedure. It probably began with “Germanic tribes, the Celts and the Francs in the early medieval period, from which point it was extended to the entire continent during mid and late medieval period.” Why would a duel be seen as a fair way to settle a legal dispute? Becuase, argues David, the outcome of the duel was seen as divinely adjudicated. It was judicium De, “for the deity's power was understood not only as a metaphysical feature, but rather as expressed through interventions applying law and justice in earthly life.” It was this belief that led to the trial by ordeal (think Parshat Sotah).

The similarity of the duel and the ordeal is not coincidental, and their justification mechanism makes them similar legal procedures. The duel as well as the ordeal placed the accused before a real danger whose outcome signified innocence or guilt, and in both procedures, the results were considered the deity's verdict. Therefore victory in duel, and survival of an ordeal, were interpreted as indication of heavenly adjudication and not as an arbitrary result.

“ From a judicial standpoint, the mechanism legitimizing the duel as a legal procedure in effect expresses a way of dealing with the phenomenon of legal uncertainty, and a perspective that views its existence as a moment in which the case exceeds the bounds of the law and is transferred for adjudication via an alternative procedure.”

— Joseph David. The One Who Is More Violent Prevails- Law and Violence from a Talmudic Legal Perspective. 19 Can. J. Law & Jurisprudence 2006: 385.

So when ordinary law has reached an impasse, heavenly law takes over. And there are many cases in the Talmud when a person is exempt from human judgment but liable to heavenly judgment - “ פָּטוּר מִדִּינֵי אָדָם, וְחַיָּיב בְּדִינֵי שָׁמַיִם.”

“בּוֹר שֶׁהוּא קָרוֹב לָאַמָּה וְכוּ׳: אִיתְּמַר: בְּנֵי נַהֲרָא; רַב אָמַר: תַּתָּאֵי שָׁתוּ מַיָּא בְּרֵישָׁא, וּשְׁמוּאֵל אֲמַר: עִילָּאֵי שָׁתוּ מַיָּא בְּרֵישָׁא
The mishna teaches that the Sages enacted that the pit that is nearest to the irrigation channel that supplies water to several pits or fields is filled first on account of the ways of peace. It was stated that the amora’im disagree about the following issue: When people own fields along a river and they irrigate their fields with water that is redirected from it, who among them enjoys first rights to irrigate his field? Rav said: The owners of the lowermost fields drink the water, i.e., irrigate their fields, first. And Shmuel said: The owners of the uppermost fields drink the water first

אָמַר רַב הוּנָא בַּר תַּחְלִיפָא: הַשְׁתָּא דְּלָא אִיתְּמַר הִלְכְתָא לָא כְּמָר וְלָא כְּמָר, כֹּל דְּאַלִּים גָּבַר

Rav Huna bar Taḥalifa said: Now that the halakha was stated neither in accordance with the opinion of this Sage, Rav, nor in accordance with the opinion of that Sage, Shmuel, whoever is stronger prevails...”

— T. Bavli Gittin 60b

The MEdieval Commentaries

Although the legal verdict of כל דאלים גבר appears rarely in the Talmud, it is more fully explained in the later commentators. “Rabbenu Chananel (d. c. 1056, cited in חדושי הרמבן על ש׳ס, בבא מציעא 2א ) distinguished between two distinct situations of conflicting claims of full ownership in which court is helpless-a situation where the conflicting sides both occupy the subject and thus leaving it in their hands means encouraging the violent and aggressive struggle between the two, and a situation where they do not have any possession and so their conflict bears a more competitive character….R. Hananel is limited only to struggles classified as fair competition and not for a state-of-affairs where the point of departure-'they are both occupying it'-invites aggression.”

Rabbenu Asher ben Yechiel (c.1250-1327) known as the Rosh took the opposite approach. He believes that is means the status quo is kept. Whoever is in possession at the time of the dispute keeps the property - his claim is “stronger.” כל דאלים גבר is “a quasi- temporal means of determining possession until relevant proofs are brought to court and the case is solved according to ordinary evidential procedures.” His position is a reflection of the commentaries on the Talmud that “seek to rationalize כל דאלים גבר as a norm that is not an alternative to the law, threatening its power and authority, but rather ultimately, one that contributes to the preservation of its status and to the strengthening of its authority.” In the end, it prevents the court from making a potentially erroneous judgement, and endangering its reputation when it would have to reverse its ruling should later evidence be discovered.

ראש, בבא בתרא לד, ב

זה אומר של אבותי וזה אומר של אבותי אמר רב נחמן כל דאלים גבר. האי כל דאלים גבר דינא הוא דכל מי שגבר ידו בפעם ראשונה הוא שלו עד שיביא חבירו ראיה וכל זמן שלא יביא ראיה

In contrast, Maimonides rules that it is a question of physical strength;

משנה תורה, הלכות טוען ונטען ט״ו:ד׳

שְׁנַיִם שֶׁהָיוּ עוֹרְרִין עַל הַשָּׂדֶה זֶה אוֹמֵר שֶׁלִּי וְזֶה אוֹמֵר שֶׁלִּי וְאֵין לְאֶחָד מֵהֶן רְאָיָה. אוֹ שֶׁהֵבִיא כָּל אֶחָד מֵהֶם עֵדִים שֶׁהִיא שֶׁלּוֹ אוֹ שֶׁל אֲבוֹתָיו אוֹ שֶׁהֵבִיא כָּל אֶחָד מִשְּׁנֵיהֶם עֵדִים שֶׁאֲכָלָהּ שְׁנֵי חֲזָקָה וְהַשָּׁנִים שֶׁהֵעִידוּ בָּהֶן אֵלּוּ הֵן הַשָּׁנִים עַצְמָן שֶׁהֵעִידוּ בָּהֶן אֵלּוּ. מַנִּיחִין אוֹתָהּ בִּידֵיהֶן וְכָל הַמִּתְגַּבֵּר יֵרֵד בָּהּ וְיִהְיֶה הָאַחֵר מוֹצִיא מִיָּדוֹ וְעָלָיו הָרְאָיָה. וְאִם בָּא שְׁלִישִׁי וְתָקַף עֲלֵיהֶן וְיָרַד לְתוֹכָהּ מְסַלְּקִין אוֹתוֹ מִמֶּנָּה

The following laws apply when two people are disputing the ownership of a field, each claiming it to be his own, but neither has proof of his claim. These same laws apply when both claimants bring witnesses who testify that the field belongs to them or to their parents, or when each of them brings witnesses who testify that the claimants benefited from the field for the time necessary to establish a claim of ownership, and both pairs of witnesses testify about exactly the same time period. We leave the field in their hands, and whoever overcomes the other one assumes possession…

And the Shulchan Aruch takes a similar approach:

שולחן ערוך, חושן משפט קמ״ו:כ״ב

ב' שהיו עוררים על שדה זה אומר שלי וזה אומר שלי ואין לאחד מהם ראיה או שהביא כל אחד מהם עדים שהוא שלו או של אבותיו או שהביא כל א' משניהם עדים שאכלה שני חזקה והשנים שהעידו בהם אלו הם השנים עצמם שהעידו בהם אלו אם היה א' מחזיק בה מקודם תשאר בידו ואם לא היה אחד מחזיק בה מניחין אותה בידיהם על המתגבר וכל המתגבר ירד בה ויהיה האחד מוציא מידו ועליו הראיה ואם בא שלישי ותקף עליהם וירד לתוכה מסלקין אותו ממנה:

The late Rabbi Adin Steinzaltz agrees. whoever has the muscle to take (and keep) the property becomes the legal owner:

כל דאלים גבר [החזק יגבר] ויקח, שאין בית הדין מתערב בענין זה

Saving the Court from Error

In the sixteenth century commentaries collected by Bezalel Ashkenazi (c. 1520–1591) known as the Shittah Mekubetzet, we find an new idea: כל דאלים גבר is a means of protecting the reputation of the court:

שהטעם שאמר כל דאלים גבר מפני שאין בית דין זקוקים ליזקק לדינם כיון דליכא דררא דממונא לתרווייהו וליכא למיקם עלה דמילתא וכיון שכן נוח להניחם לעשות כרצונם ולא נעשה אנו דין שיכול לבוא לידי טעות הילכך כל מי שמתגבר ידו בכל פעם הרי היא ברשותו עד שתגבר יד האחד או בזרוע או בראיה

The reason for the ruling כל דאלים גבר is that the court is not required to address their case for there is no loss of money for both of them and no urge to reach a decision. Accordingly it is comfortable to leave them to do what they wish and we should not give an erroneous verdict. Therefore the one who is more violent each time owns it, until the other one will overpower him, either by arm or by evidence.

There is much subtlety to David’s discussion, and much more to be said on the topic. His observation as כל דאלים גבר as a means of preserving the reputation of the court is fascinating. But it raises many further questions - why is this need manifest in so few cases? As usual, צריך עיון גדול.

Talmudology on the Parsha, Pinchas: Secrecy, Consequentialism, and Extra-Judicial Killings

במדבר 25: 10-15

וַיְדַבֵּר יְהֹוָה אֶל־מֹשֶׁה לֵּאמֹר׃ פִּינְחָס בֶּן־אֶלְעָזָר בֶּן־אַהֲרֹן הַכֹּהֵן הֵשִׁיב אֶת־חֲמָתִי מֵעַל בְּנֵי־יִשְׂרָאֵל בְּקַנְאוֹ אֶת־קִנְאָתִי בְּתוֹכָם וְלֹא־כִלִּיתִי אֶת־בְּנֵי־יִשְׂרָאֵל בְּקִנְאָתִי׃ לָכֵן אֱמֹר הִנְנִי נֹתֵן לוֹ אֶת־בְּרִיתִי שָׁלוֹם׃ וְהָיְתָה לּוֹ וּלְזַרְעוֹ אַחֲרָיו בְּרִית כְּהֻנַּת עוֹלָם תַּחַת אֲשֶׁר קִנֵּא לֵאלֹהָיו וַיְכַפֵּר עַל־בְּנֵי יִשְׂרָאֵל׃ וְשֵׁם אִישׁ יִשְׂרָאֵל הַמֻּכֶּה אֲשֶׁר הֻכָּה אֶת־הַמִּדְיָנִית זִמְרִי בֶּן־סָלוּא נְשִׂיא בֵית־אָב לַשִּׁמְעֹנִי׃ ושֵׁם הָאִשָּׁה הַמֻּכָּה הַמִּדְיָנִית כזְבִּי בַת־צוּר רֹאשׁ אֻמּוֹת בֵּית־אָב בְּמִדְיָן הוּא׃

The LORD spoke to Moses, saying,:

“Phinehas, son of Eleazar son of Aaron the priest, has turned back My wrath from the Israelites by displaying among them his passion for Me, so that I did not wipe out the Israelite people in My passion. Say, therefore, ‘I grant him My pact of friendship. It shall be for him and his descendants after him a pact of priesthood for all time, because he took impassioned action for his God, thus making expiation for the Israelites.’”

The name of the Israelite who was killed, the one who was killed with the Midianite woman, was Zimri son of Salu, chieftain of a Simeonite ancestral house. The name of the Midianite woman who was killed was Cozbi daughter of Zur; he was the tribal head of an ancestral house in Midian.

The Murder of Cozbi and Zimri

At the end of last week’s parsha, we read about the murder of Zimri, one of the leaders of the tribe of Shimon and Cozbi, a Midianite woman who were caught in flagrante delicto by Pinchas. Here is a reminder of what he did:

במדבר 25:7-8

וַיַּרְא פִּינְחָס בֶּן־אֶלְעָזָר בֶּן־אַהֲרֹן הַכֹּהֵן וַיָּקם מִתּוֹךְ הָעֵדָה וַיִּקַּח רֹמַח בְּיָדוֹ׃ וַיָּבֹא אַחַר אִישׁ־יִשְׂרָאֵל אֶל־הַקֻּבָּה וַיִּדְקֹר אֶת־שְׁנֵיהֶם אֵת אִישׁ יִשְׂרָאֵל וְאֶת־הָאִשָּׁה אֶל־קֳבָתָהּ וַתֵּעָצַר הַמַּגֵּפָה מֵעַל בְּנֵי יִשְׂרָאֵל׃

When Pinchas, son of Eleazar son of Aaron the priest, saw this, he left the assembly and, taking a spear in his hand, he followed the Israelite into the chamber and stabbed both of them, the Israelite and the woman, through the belly…

David Martin (1639–1721), published in Amsterdam by Pieter Mortier I (1661–1711), Public domain, via Wikimedia Commons.

I use the word murder deliberately. There had been no trial, much less a sentence of execution, and Pinchas was acting outside of the law. This is also what some of the rabbis in the Talmud believed.

בבלי סנהדרין פד, א

א"ר חסדא הבא לימלך אין מורין לו איתמר נמי אמר רבה בר בר חנה א"ר יוחנן הבא לימלך אין מורין לו ולא עוד אלא שאם פירש זמרי והרגו פנחס נהרג עליו נהפך זמרי והרגו לפנחס אין נהרג עליו שהרי רודף הוא

Rav Chisda says: Concerning one who comes to consult with the court when he sees a Jewish man engaging in intercourse with a gentile woman, the court does not instruct him that it is permitted to kill the transgressor. It was also stated that Rabba bar bar Chana says in the name of Rabbi Yochanan: Concerning one who comes to consult with the court, the court does not instruct him that it is permitted to kill the Jewish man engaging in intercourse with a gentile woman.

Moreover, if Zimri had separated himself from the woman and only then Pinchas killed him, Pinchas would have been executed for killing him, because it is permitted for zealots to kill only while the transgressor is engaged in the act of intercourse. Furthermore, if Zimri would have turned and killed Pinchas in self-defense, he would not have been executed for killing him, as Pinchas was a pursuer [who may be killed self-defense].

An even stronger condemnation of Pinchas is found in the Yerushalmi:

תלמוד ירושלמי סנהדרין 9:4

תַּנֵּי שֶׁלֹּא כִרְצוֹן חֲכָמִים. וּפִינְחָס שֶׁלֹּא כִרְצוֹן חֲכָמִים? אָמַר רִבִּי יוּדָה בַּר פָּזִי. בִּיקְשׁוּ לְנַדּוֹתוֹ אִילוּלֵי שֶׁקָּֽפְצָה עָלָיו רוּחַ הַקּוֹדֶשׁ וְאָֽמְרָה וְהָיְתָה לּוֹ וּלְזַרְעוֹ אַחֲרָיו בְּרִית כְּהֻנַּת עוֹלָם

It was stated: [Pinchas’ actions were] not with the agreement of the Sages . Would Pinchas act against the Sages? Rebbi Yudah bar Pazi said, they wanted to excommunicate him, had not the Holy Spirit jumped on him and declared that וְהָיְתָה לּוֹ וּלְזַרְעוֹ אַחֲרָיו בְּרִית כְּהֻנַּת עוֹלָם (Numbers 25:15) “an eternal covenant of priesthood shall be for him and his descendants after him.”

Pinchas was only spared a punishment for his murder because of divine intervention.

Pinchas in Psalm 106

The story told at the end of last week’s parsha and the beginning of this week’s is also described in the Book of Psalms (106).

תהילים קו, 28-30

וַיִּצָּמְדוּ לְבַעַל פְּעוֹר וַיֹּאכְלוּ זִבְחֵי מֵתִים׃ וַיַּכְעִיסוּ בְּמַעַלְלֵיהֶם וַתִּפְרץ־בָּם מַגֵּפָה׃ וַיַּעֲמֹד פִּינְחָס וַיְפַלֵּל וַתֵּעָצַר הַמַּגֵּפָה׃

They attached themselves to Baal Peor, ate sacrifices offered to the dead. They provoked anger by their deeds, and a plague broke out among them. Pinchas stepped forth and intervened, and the plague ceased.

In this version of the story, there is no mention of a Midianite woman, and no detail as to how Pinchas interveded. Sensing the need to justify this extra-judicial killing, some of the commentaries imagined that Pinchas undertook some kind of legal process:

אבן עזרא תהילים 106: 30

ויעמד, ויפלל - עשה דין, כמו עון פלילי

And he intervened: He considered the legality…

מצודת ציון על תהילים ק״ו:ל׳:א׳

ויפלל. ענין דין ומשפט כמו ונתן בפלילים (שמות כא)

And he intervened: This concerned the law…

הלכה ואין מורין כן “This is the law, but do not tell anyone”

הלכה ואין מורין כן “This is the law, but do not tell anyone.” This phrase is used only a few times in the Talmud to indicate a very special set of laws. They are laws that are technically on the books, but are not to be approved as such or disseminated. They are “only for those in the know.” Although this specific phrase - הלכה ואין מורין כן - is not used to describe the actions of Pinchas, the Talmud’s approach to the legality of his extra-judicial killings is identical. That is what we read above in the Mishnah in Sanhedrin: “א"ר חסדא הבא לימלך אין מורין לו.” Maimonides makes this clear in his commentary on this Mishnah:

ואם ישאל לנו הקנאי אם יפגע בו אם לא ואפילו הוא בשעת מעשה אין מורין לו ואם פשט ידו והרגו אין עליו עונש וכמו כן אם התחזק הבועל בשעת המעשה והרג את הקנאי להציל נפשו ממנו אינו חייב מיתה לפי שהוא רודף אחריו להרגו והתורה לא גזרה הדין להרגו אלא על הדרך הנזכר

And he codified this in his Mishneh Torah:

רמב’ם משנה תורה הל׳ איסורי ביאה 12:5

כָּל הַבּוֹעֵל כּוּתִית בֵּין דֶּרֶךְ חַתְנוּת בֵּין דֶּרֶךְ זְנוּת אִם בְּעָלָהּ בְּפַרְהֶסְיָא וְהוּא שֶׁיִּבְעל לְעֵינֵי עֲשָׂרָה מִיִּשְׂרָאֵל אוֹ יֶתֶר אִם פָּגְעוּ בּוֹ קַנָּאִין וַהֲרָגוּהוּ הֲרֵי אֵלּוּ מְשֻׁבָּחִין וּזְרִיזִין [ו.] וְדָבָר זֶה הֲלָכָה לְמשֶׁה מִסִּינַי הוּא. רְאָיָה לְדָבָר זֶה מַעֲשֶׂה פִּינְחָס בְּזִמְרִי

Whenever a man has relations with a gentile woman in public, i.e., the relations are carried out in the presence of ten or more Jews, if a zealous person strikes him and kills him, he is considered praiseworthy and ardent. [This applies whether the relations were] in the context of marriage or licentious in nature. This matter is a halachah conveyed to Moshe at Sinai. Support for this can be derived from Pinchas' slaying of Zimri.

But, the Rambam writes, there are limits:

וְאֵין הַקַּנַּאי רַשַּׁאי לִפְגֹּעַ בָּהֶן אֶלָּא בִּשְׁעַת מַעֲשֶׂה כְּזִמְרִי שֶׁנֶּאֱמַר (במדבר כה ח) "וְאֶת הָאִשָּׁה אֶל קֳבָתָהּ". אֲבָל אִם פֵּרַשׁ אֵין הוֹרְגִין אוֹתוֹ. וְאִם הֲרָגוֹ נֶהֱרַג עָלָיו. וְאִם בָּא הַקַּנַּאי לִטּל רְשׁוּת מִבֵּית דִּין לְהָרְגוֹ אֵין מוֹרִין לוֹ וְאַף עַל פִּי שֶׁהוּא בִּשְׁעַת מַעֲשֶׂה. וְלֹא עוֹד אֶלָּא אִם בָּא הַקַּנַּאי לַהֲרֹג אֶת הַבּוֹעֵל וְנִשְׁמַט הַבּוֹעֵל וְהָרַג הַקַּנַּאי כְּדֵי לְהַצִּיל עַצְמוֹ מִיָּדוֹ אֵין הַבּוֹעֵל נֶהֱרַג עָלָיו. וְהַבָּא עַל בַּת גֵּר תּוֹשָׁב אֵין הַקַּנָּאִין פּוֹגְעִים בּוֹ אֲבָל מַכִּין אוֹתוֹ מַכַּת מַרְדּוּת

The zealous person can strike [the fornicators] only at the time of relations, as was the case with regard to Zimri, as [Numbers 25:8] states: "[He pierced] the woman into her stomach." If, however, [the transgressor] withdraws, he should not be slain. Indeed, if [the zealous person] slays him, he may be executed [as a murderer].
If the zealous person comes to ask permission from the court to slay him, they do not instruct him [to], even if this takes place at the time [of relations]. Not only that, if the zealous person comes to kill the transgressor and he withdraws and kills the zealous person in order to save himself, the transgressor is not executed for killing him.

“‘it may be right to do and privately recommend, under certain circumstances, what it would not be right to advocate openly’.”

— Henry Sidgwick, The Methods of Ethics. London: Macmillan, 1907. p489.

SIDGWICK on esoteric morality

We can shed some new light on the rabbinic principle of הלכה ואין מורין כן from the work of the philosopher Henry Sidgwick (1838-1900). In his book The Methods of Ethics he divided society into two: there were “enlightened utilitarians” who can understand the subtleties of the law and when it may allow for exceptions, and there were the rest, for whom “such sophisticated rules would be dangerous.”

. . . on Utilitarian principles, it may be right to do and privately recommend, under certain circumstances, what it would not be right to advocate openly; it may be right to teach openly to one set of persons what it would be wrong to teach to others; it may be conceivably right to do, if it can be done with comparative secrecy, what it would be wrong to do in the face of the world; and even, if perfect secrecy can be reasonably expected, what it would be wrong to recommend by private advice and example.’

As Katarzyna de Lazari-Radek and Peter Singer explain in their fascinating 2010 paper Secrecy on Consequentialism: a Defence of Esoteric Morality, Sidgwick here is endorsing what has come to be known as esoteric morality. They outline some of its important features:

• There are acts which are right only if no one – or virtually no one – will get to know about them. The rightness of an act, in other words, may depend on its secrecy. This can have implications for how often, and in what circumstances, such an act may be done.

• Some people know better, or can learn better, than others what it is right to do in certain circumstances.

• There are at least two different sets of instruction, or moral codes, suitable for the different categories of people. This raises the question whether there are also different standards by which we should judge what people do.

• Though the consequentialist believes that acts are right only if they have consequences at least as good as anything else the agent could have done, the consequentialist may need to discourage others from embracing consequentialism.

• Paradoxically, it may be the case that philosophers who support esoteric morality should not do so openly, because as Sidgwick said: ‘it seems expedient that the doctrine that esoteric morality is expedient should itself be kept esoteric’.

de Lazari-Radek and Singer provide a number of examples which, they claim, “help us to see what [Sidgwick] means and why he is right.” Here is one, to explain Sidgwick’s claim that “it may be conceivably right to do, if it can be done with comparative secrecy, what it would be wrong to do in the face of the world.”

A soldier is brought before a general, charged with desertion in battle, for which the mandatory penalty is a long term of imprisonment. The soldier admits that he did desert, but begs for pardon, saying that he does not want his two small children to grow up without a father. Only one or two other people, who the general feels he can trust, know that the soldier deserted. The general assigns the soldier to duties behind the front line, telling him he must never say a word to anyone about deserting, or being charged with desertion. He tells his administrative officers to destroy all records of the charge and forget all about it.

Assume that if it were to become generally known that the fathers of small children may desert with impunity, this would materially hinder the ability of the army to fight, and that this would have bad consequences. Therefore it would have been wrong for the general to allow all the world to know of his decision regarding the deserter. It may still have been right for him to make that decision. Two children will have their father at home, the soldier and his wife will have a much better life, and the army’s fighting ability will suffer no material harm.

Consequentialism is a moral theory that believes that it is the consequences of conduct that determine whether that conduct was right or wrong. For the consequentialist, like Sidgwick, the morally right action is the one that produces a good outcome. So the murder of Zimri and Cozbi was justifiable, even if it is in a sort legal grey area.

“Consequentialism generally accepts that it is desirable for a society that there is a publicly accepted set of rules or principles that people internalize and generally follow. Consequentialists can agree that it is important for people to be able to rely on the moral rules and to know that others will follow them – society will function better if there is a generally accepted set of rules than if there is not.
”

— Katarzyna de Lazari-Radek and Peter Singer, Secrecy on Consequentialism: a Defence of Esoteric Morality. Ratio XXIII 2010. 54.

Why הלכה ואין מורין כן is (generally) a bad idea

There are of course objections to the notion of an esoteric morality, or what we call הלכה ואין מורין כן. The moral philosopher Bernard Gert (1924-2011) for example, wrote that “hardly anyone denies that morality must be such that a person who adopts it must also propose its adoption by everyone.” And Thomas Scanlon believed that “ ‘thinking about right and wrong is, at the most basic level, thinking about what could be justified to others on grounds that they, if appropriately motivated, could not reasonably reject.” de Lazari-Radek and Singer address these and other challenges, and give several examples of where they believe esoteric morality (הלכה ואין מורין כן) is justifiable. However, they most certainly agree that there are good reasons why consequentialists should share in the broad support for transparency in ethics, and in most circumstances, esoteric morality should be avoided. They list five:

a. The benefits of a shared code

It is plausible to hold that if a society is to work well, it needs to have a shared moral code that its members can internalize, follow and expect others to follow. Many studies indicate that trust is an important factor in ensuring social welfare.

b. The benefits of open discussion

Transparency permits open discussion and criticism of rules and policies that are being considered for implementation. To accept a morality that is only for the elite implies that we are permitted to manipulate those who are not part of the elite, in order to produce the best consequences. When we do so, we are unable to seek the opinions of those who we are manipulating on the policies we are actually implementing…. We imagine the white colonial administrators sitting around in their cane arm-chairs under the ceiling fans, discussing how best to rule the natives. They may discuss their policies among themselves, and with the imperial government back home, but not with those who are most directly affected by them, the natives themselves. Under these circumstances they will have a tendency to convince themselves that what is in the best interests of the imperial power is the right thing to do. The danger is great that it will all go wrong because of the absence of exchange of ideas that could have happened if the policies had been transparent.

c. The dangers of elitism

Even if the lack of transparency does not lead to evils in any way comparable to those of oppressive colonial regimes, there are good grounds for objecting to dividing society into an elite and the masses. Whether it is nobles over peasants, whites over blacks, capitalists over workers, bolsheviks over the masses, or men over women, we know that those who are part of the elite will feel superior and have no difficulty in justifying, in their own terms, giving themselves privileges that in no way benefit – and often grievously harm – those they consider beneath them.

d. The public nature of education

We must also remember that morality is, at least in part, a social institution that exists only because each generation of children is educated to accept it. Since education is a public process, this cannot be education in an esoteric morality, at least not unless the children of a special elite were to be educated in secret, which would have the undesirable implications just mentioned. So a large part of morality must consist of rules or principles that are known by everyone, including teachers and children….

When we deceive people about the reasons why they should act in a certain way, we make it impossible for them to develop their critical capacities, at least in respect of those reasons for action about which they are being deceived. The ideal kind of political entity, we may well think, is one in which all citizens are capable of deliberating on the reasons for acting and for adopting particular policies. If they are unaware of the true reasons for the principles and policies they are following, they will not learn these habits of deliberating, or will not learn them well.

e. Respecting Preferences

Suppose that we prefer that our friends always give us their honest opinion about our work, never sparing our feelings, but they fear that if they tell the truth, we may become discouraged, so occasionally they are dishonest. We never find out about this. Nevertheless, our preference that they be honest with us has not been satisfied. On a preference utilitarian view, the fact that this preference was not satisfied means that our lives went less well, other things being equal, than they would have if our friends had told the truth.

How do we feel about the actions of Pinchas, and, perhaps even more importantly, about the very idea of הלכה ואין מורין כן? Does it may you a little uncomfortable? According to de Lazari-Radek and Singer, it should. That is the whole point of an esoteric morality; in public, it should be disavowed.

Given that, it is not surprising that the idea of esoteric morality should meet with resistance, for to resist it is to publicly disavow it. To defend this position in public is therefore to be involved in a paradox. Most of you reading this may be philosophers, but you are also members of the public, and your resistance is therefore, the ‘right’ response, in the sense that it is good that you should have that response. You should be reluctant to embrace esoteric morality, and you should feel strongly that there is something wrong with our conclusion [that an esoteric morality, or הלכה ואין מורין כן is sometimes morally justifiable]. Nevertheless, sometimes we are right to do in secret what it would be wrong to do, or to advocate, in public.

“Consequentialism = whether an act is morally right depends only on consequences (as opposed to the circumstances or the intrinsic nature of the act or anything that happens before the act).”

— Sinnott-Armstrong, Walter, "Consequentialism", The Stanford Encyclopedia of Philosophy (Winter 2023 Edition), Edward N. Zalta & Uri Nodelman (eds.).