Introduction – The Halachic Question and Three Serious Transgressions
The halachos of pikuach nefesh are based on the simple and fundamental assumption that pikuach nefesh overrides all prohibitions in the Torah. However, it is well known that Chazal imposed an important restriction on the halacha of pikuach nefesh. The Gemara lays out the halacha in the eighth chapter of Yoma, and states there (as well as in other places across the Talmud):
For there is nothing that stands before [the duty of] saving life, except for idolatry, prohibited sexual relations, and bloodshed [which are prohibited in all situations]. (Yoma 82a)
Mortal danger permits one to eat on Yom Kippur, violate Shabbos, or transgress any other prohibition in the Torah – with the exception of three cardinal sins. With regard to these, the halakha is that "one should be killed rather than transgress" (yehareg ve-al ya’avor); one is required to give up his life rather than violate them.
But questions have been raised in the halakhic literature in these areas as well, i.e., whether there might in fact be cases in which it would be permissible to transgress one of the three cardinal transgressions in order to save a life. The simple answer is no, as evident in Yoma; however, we shall see that the halakhic conclusion may be different when dealing with communal pikuach nefesh and the saving of many people, and all the more so when the stakes involve the Jewish people as a whole.
For the sake of clarity, we will focus on one practical question, which involves two of the most serious transgressions: idolatry and forbidden sexual relations. The halakhic question is: What are the boundaries of permissible and impermissible behavior for an intelligence agent (male or female) who lives and operates under a false identity in an enemy country, in order to gather intelligence for the benefit of the State of Israel or to engage in counter-intelligence operations of various kinds. The question has been raised over the years by men and women who have served in the various security agencies, and who have had to become fully integrated into other societies in order to achieve their objectives. This integration often required active participation in religious rites of worship, as well as marriage or engaging in sexual relations that are forbidden by the most serious prohibitions of the Torah.
The Cases of Yael and Esther, and the Maharik's Novel Understanding
The Gemara in Nazir teaches a surprising halakha:
Rav Nachman bar Yitzchak said: A transgression performed for the sake of Heaven [lit. “for its sake”] is greater than a mitzva performed not for the sake of Heaven [lit. “not for its sake”]… Rather, say: [it is] like a mitzva performed not for the sake of Heaven. As it is written: "Blessed above women shall Yael be, the wife of Chever the Kenite. Above women in the tent shall she be blessed" (Shoftim 5:24). Who are "women in the tent"? Sara, Rivka, Rachel, and Lea. Rabbi Yochanan said: That wicked man [Sisera] had sevenfold intercourse [with Yael] at that time, as it is stated: "At her feet he sunk, he fell, he lay, etc." (Shoftim 5:27). But she derived pleasure from his intercourse! Rabbi Yochanan said: All favors of the wicked are evil to the righteous. (Nazir 23b)
This is not the place to discuss the halakhic and ideological ramifications of the notion of "a transgression performed for the sake of Heaven."[1] What is relevant to our discussion is that in order to effect a decisive influence on the outcome of the campaign against the army of Yavin, king of Chatzor, Yael initiated a forbidden sexual relationship with Sisera – even though that would seem to be included in the obligation to "be killed rather than transgress."[2]
Most Rishonim[3] explained that the justification for Yael’s actions was based on the concept of karka olam – literally, "natural ground" – a phrase Chazal coined in the Gemara in Sanhedrin 74b. What it means is that a woman's role in the act of intercourse is secondary relative to that of the man, and therefore, she does not exactly fall into the category of "transgressor" and the rule of "one should be killed rather than transgress" does not apply. If this is the case, then nothing new is learned from Yael, and we certainly cannot learn from here that it is permissible to commit these serious transgressions in the context of war or for the sake of saving a life.
However, some Rishonim proposed a different principle by which to understand Yael's actions. The Tosafot in Ketubot commented:
And she committed a transgression for the sake of Heaven in order to save Israel. (Tosafot, Ketubot 3b, s.v. ve-lidrosh)
The Meiri took the same approach:
And if you reply that Yael succumbed to Sisera even willingly, as they said: “That wicked man had sevenfold intercourse [with Yael], as it is stated: ‘At her feet he sunk, he fell, he lay, etc.’" – saving the many is different… And all the more so regarding Yael, where [Sisera’s act] was for his own pleasure, and in private, and Yael considered herself as forced for the sake of saving the many. (Meiri, Sanhedrin 74b, s.v. ve-yesh gorsim)
According to the Meiri, the allowance for Yael was based on the fact that it was a case of "saving the many" – though this did not stop him from mentioning additional reasons for leniency.
Rabbi Yosef Colon (the Maharik, who lived in France and Italy at the end of the period of the Rishonim) does not cite the Tosafot or the Meiri, but he expands more in his explanation of this halakha. Based on a citation from the Tosafot of Rabbi Yehuda of Paris (which is not extant in the original), he explains that there were far-reaching allowances in the cases of Yael and Esther because they acted not only for the sake of pikuach nefesh, nor even only for the sake of "saving the many," but rather for the sake of saving the entire Jewish people:
It is obvious that Esther did nothing forbidden, nor was there even a hint of transgression in what she did; rather, she performed a great mitzva in saving all of Israel. And know that this is so, for when she came before the king, the spirit of prophecy descended upon her, as we learn from the verse: "And Esther clothed herself in royal [apparel]"… Rather, on the contrary, it is self-evident that she performed a very great mitzva, especially since she was karka olam [i.e., a passive participant]. And similarly, we find in the case of Yael, the wife of Chever HaKeni, that Scripture praised her regarding the incident with Sisera and considered her act to be of equal magnitude to the couplings of the matriarchs with the patriarchs… And it was permitted to commit this transgression for the sake of Heaven, even though she was a married woman, in order to save all of Israel. And thus we find with Esther, that she presented herself to Achashverosh when he had not called for her, so that he would desire her and be seduced to do her bidding. (Responsa Maharik, no. 167)
On the one hand, the Maharik explicitly states that for the sake of saving "all of Israel," an allowance is granted to transgress serious prohibitions. On the other hand, the Maharik emphasizes that this was a "transgression for the sake of Heaven." As we have discussed at length in previous shiurim, actions such as violating Shabbat or eating on Yom Kippur for the sake of pikuach nefesh are not perceived as "transgressions"; on the contrary, one who violates Shabbat for the sake of pikuach nefesh is rewarded by God (see shiurim 53 and 54). But in our present case of engaging in prohibited sexual relations for the sake of saving the people, the Maharik holds that there is indeed a "transgression" involved but it is "for the sake of Heaven." Later in the passage, the Maharik emphasizes that Esther was forbidden to her husband Mordechai (according to the midrash) in accordance with the law of a married woman who had sexual relations with another man willingly, and not by force – i.e., a "transgression" was committed, but this “transgression” was permitted for the sake of saving the entire Jewish people.
The later poskim[4]disagree as to whether the Maharik's position can be relied upon in actual practice when a woman sacrifices herself to a prohibited act in order to save others. Some conclude that it is permitted even if she does so to save just one person. Others maintain that it is permitted only in a case where she would be saving many people. The lenient authorities are divided as to whether she is then considered like a rape victim and thus permitted to be with her husband (unless he is a kohen), or whether, despite the allowance (and perhaps even the obligation) to do what she did, she becomes forbidden to her husband as a result.
In addition, some leading Acharonim rejected these allowances out of hand, and explained that the Maharik was dealing specifically with the unique case of salvation of the entire nation. Thus explained the Noda bi-Yehuda:[5]
And I say that since Chazal said that one may cure [i.e., save] himself with all forbidden things except idolatry, forbidden sexual relations, and murder, if so, just as one may not cure himself with these three transgressions, so one may not save lives with them. And the case of rape, regarding which the Torah grants an allowance to a woman because she is considered karka olam, is where she is forced into the act of intercourse. But where she is not compelled to participate in the act of intercourse, and on the contrary, she strives to do so in order to save lives, this is not called karka olam, and men and women are the same in this regard, and she should be killed and not transgress. And Esther was different in that she acted to save the entire Jewish people from Hodu to Kush, and we cannot learn about the salvation of an individual from the salvation of all of Israel, young and old, from Hodu to Kush. And there it was through the ruling of Mordechai and his court, and perhaps with ruach ha-kodesh (divine inspiration). (Responsa Noda bi-Yehuda, 2nd series, Yoreh De'a, no. 161)
Thus, even the Noda bi-Yehuda, who adopts the restrictive understanding of the Maharik (he refers to him explicitly in the sections not quoted here), concedes that when it comes to a national mission to save the people, there may be room for allowance.
The Responsa of Rav Avraham Yitzchak Kook
If we return to the questions with which we began the discussion: We have not been favored with the likes of Mordechai and his court, and certainly not with ruach ha-kodesh. Nevertheless, if the salvation of the entire Jewish people is taken into account – it is not infrequently the case that intelligence information supplied by an agent in a foreign country is vital and essential to the victory of the campaign and to the protection of the well-being and security of the citizens of Israel as a whole.
And indeed, Rav Avraham Yitzchak Kook elaborated at length on these issues, and on the significance of the allowance to transgress a prohibition for the sake of the entire Jewish people. In a series of discussions in Responsa Mishpat Kohen dealing with the obligation of the individual to risk his life and sacrifice himself for the sake of others and for the sake of the community as a whole, Rav Kook established a fundamental distinction between the individual and the community.
Regarding the matter at hand, Rav Kook explains that the allowance for Yael to engage in forbidden sexual relations was based on a type of hora'as sha'a, a temporary ruling in response to a specific urgent situation. But unlike other temporary rulings, which require a prophet or ruach ha-kodesh, this was a temporary ruling that stemmed directly from the need to save the people of Israel as a whole:
But for the salvation of Klal Yisrael [=the entire Jewish people], it may be said that a ruling of the court is not required, for it is obvious that it is a matter of migdar milta (creating a safeguard), and therefore Yael permitted it for herself without a court. (Responsa Mishpat Kohen, no. 143)
These responsa of Rav Kook are addressed to Rabbi Shlomo Zalman Pines. It seems from Rav Kook’s words that Rabbi Pines had suggested that Yael’s action should be understood as a ruling in the framework of the laws of war. Rav Kook rejects that argument:
And similarly, what you wrote, that a milchemet mitzva is different, is also puzzling for this reason, for where do we find an allowance to engage in forbidden sexual relations on account of a milchemet mitzva? Even regarding other prohibitions, we do not find that they were permitted [because of war]. (Responsa Mishpat Kohen, no. 144)
Rav Kook certainly accepted the view that there are broad dispensations in war, but he maintained that there is no indication that forbidden sexual relations were permitted on account of war. We are therefore forced to conclude that if we wish to establish any allowance in this area, it must be anchored in the precedent of a temporary ruling acting as a safeguard – for the sake of saving the entire people of Israel.
We cannot go into the details of Rav Kook's lengthy discussion here. I shall therefore content myself with quoting from an article by Prof. Nachum Rakover, which he devoted to elucidating and clarifying Rav Kook's position in these responsa. He summaries the point as follows:
Rav Kook’s position regarding the uniqueness of Klal Yisrael is well known. Klal Yisrael is not merely an aggregate of individuals, but rather a special status. While in the case of the nations of the world, the whole is nothing but the sum of its parts, in the case of the people of Israel, the whole is on a level of its own… Rav Kook's viewpoint regarding the special status of the Jewish people gives rise to his opinion concerning the obligation of the individual to sacrifice his life to save the community (klal). According to Rav Kook, while the individual is not obligated to sacrifice his life for the sake of another individual or even to save many people, he is obligated to sacrifice his life to save Klal Yisrael…
The special status of the community also has implications with respect to the permissibility of transgressing Torah prohibitions, including forbidden sexual relations, for the sake of saving the entire community. Various sages have discussed this allowance, but we find the emphasis on "Klal Yisrael" in the responsum of the Noda bi-Yehuda. While the Noda bi-Yehuda based the allowance on "the ruling of Mordechai and his court, and perhaps with ruach ha-kodesh," with Rav Kook we find a more comprehensive basis for the special allowance to transgress prohibitions for the sake of saving Klal Yisrael. (Prof. Nachum Rakover, "Klal Yisrael – Filosofiya u-Mishpat," in Techumin vol. 16)
The Halakha in Practice; Rabbi Goren’s ruling
Rav Kook's responsa deal with the principles of the issue, but they do not address a specific halakhic question. It is not surprising that the first to address the issues at hand on a practical halakhic level was Rabbi Shlomo Goren.[6] In an article entitled "Ba'ayot Hilkhatiyot ba-Shabak u-ba-Mosad," Rabbi Goren addresses questions he presents as "complicated halakhic problems that have never arisen before." Among other things, Rabbi Goren was asked whether a spy stationed in a foreign country could marry a non-Jewish woman in order to blend in with the society. After discussing at length the views of the Rishonim regarding the precise halakhic definition of the prohibition of a Jew marrying a non-Jew, Rabbi Goren adds:
Nevertheless, it would seem that we have a clear proof that the security of Israel sets aside this prohibition of sexual relations with a gentile, for we find in tractate Nazir: "A transgression performed for the sake of Heaven is greater than a mitzva…." We can learn from this that the security of Klal Yisrael is not to be compared to the security of an individual, and that pikuach nefesh of Klal Yisrael is not to be compared to that of an individual. For although saving the life of an individual does not set aside the three cardinal sins of idolatry, forbidden sexual relations, and murder – saving the lives of Klal Yisrael, and the vital security of the entire nation, sets aside even these transgressions. Therefore, when Yael was able to strike the enemy of the people of Israel and kill Sisera by means of a transgression for the sake of Heaven, even of the prohibition of forbidden sexual relations, she did so.
From here we can learn about the security services of the people of Israel. When there is a vital need to plant a Jew in an enemy country, and changing his identity requires a fictional marriage with a gentile, it may be possible to rely on the deeds of Yael, who was a righteous woman and whom the text praises and blesses more than Sara, Rivka, Rachel, and Lea, as is explicit in the Talmud. (Rabbi Shlomo Goren, "Ba'ayot Hilkhatiyot ba-Shabak u-ba-Mosad," in Mishnat ha-Medina)
Rabbi Goren does not cite the Maharik or the Noda bi-Yehuda, but he makes precisely the same claim: in a situation of war, and when national security is at stake, it may be permissible to be lenient even about prohibited sexual relations.
In the course of his remarks, Rabbi Goren extends the allowance to matters of idolatry, which is an even greater innovation. When the question is about sexual relations, one can find grounds for leniency: a Jewish man’s marriage to a non-Jewish woman is not necessarily a prohibited sexual union; a female Jewish spy's marriage to a non-Jewish man, even if she is married, may be included in the allowance of karka olam; and so on. But with respect to participation in religious events, and especially when it comes to Christianity or other forms of idolatry, the transgression is even more serious, as codified by the Tur in the name of the Rosh:
It is forbidden for a person to say that he is a gentile so they won’t kill him, for when he says that he is a gentile, he is agreeing with their religion and rejecting fundamental principles [of the Jewish faith]. (Tur Yoreh De'a 157, and similarly Shulchan Arukh Yoreh De'a 157:1)
The Rishonim and poskim explain that in a situation of danger, one may be lenient about merely visiting a church or donning the garb of idolaters (see Shulchan Arukh and Rema, ibid.). But not infrequently, for the sake of complete assimilation, a spy is required to take an active part in religious rites and perhaps even to lead them, and as stated, this is explicitly forbidden in the Tur and the Shulchan Arukh!
Here too, Rabbi Goren explains that we must rely on the same argument: One who acts for the sake of the salvation of the entire nation is permitted to be lenient in this matter, and this is "a transgression for the sake of Heaven."[7]
And thus, here, too, in this domain of questions that are best left shrouded in silence, Rabbi Goren paved a clear halakhic path and was even able to suggest a halakhic dispensation that is indeed very novel but that has basis in the words of the poskim, as we have learned.
Several years ago, Rabbi Ari Yitzchak Shevat published an article in which he broadly summarized the issue we have been discussing. Rabbi Shevat focused on the question of a "honey trap" operation – the deployment of a female undercover agent for the purpose of achieving a security or intelligence objective. He deals with the very definition of the halakhic prohibition for a married woman to engage in sexual relations with a non-Jew, and also extensively with the question of whether she would be forbidden to her husband upon completion of the operation. (He finds it difficult to rule that she is permitted to return to her husband; therefore, it is advisable to use an unmarried agent or, alternatively, a married woman whose husband is not a kohen and would give her a bill of divorce before the operation – although this suggestion is not always practical, for reasons of classification and secrecy.) But regarding the halakhic foundation, he makes an interesting, if somewhat far-reaching, suggestion with which I shall conclude this shiur:
It may be that a heroic act can be defined as [inspired by] ruach ha-kodesh. Many verses introduce acts of heroism with preambles indicating this very idea, such as: "And the spirit of the Lord came upon Yiftach" (Shoftim 11:29); and regarding Shimshon, "And the spirit of the Lord came upon him" (Shoftim 14:19). The Rambam (Guide for the Perplexed II, 45) explained that this is a level, albeit a lowly one, of prophecy – "that Divine assistance will accompany him, and will stir and urge him to do a great and valuable good, such as the rescue of a group of pious people from a group of wicked people." He is referring to Moshe Rabbeinu's slaying of the Egyptian, which was done even before he encountered God at the burning bush. Perhaps this is what the Maharik (Responsa, no. 167) and Responsa Binyamin Ze'ev (no. 403) meant when they emphasized that Esther's decision to engage willingly in forbidden sexual relations was itself her ruach ha-kodesh… that is, the very audacity and self-sacrifice (including the altruistic sacrifice of becoming forbidden to her husband) are considered like ruach ha-kodesh, even if it was not stated previously that there was a prophetic directive or Divine revelation. In general, the act of a female agent that is performed for the sake of saving many people or for the sake of saving Israel can be defined as an act of heroism and self-sacrifice, standing in opposition to the inner modesty of a daughter of Israel. And perhaps there is in this a fulfillment of the condition of ruach ha-kodesh that is required by the plain meaning of the words of the Noda bi-Yehuda…
Therefore, not only is it permitted, but Chazal elevate this act of self-sacrifice (which is even more difficult than the self-sacrifice of one's [life]!) to save Israel, as in the acts of Yael and the martyrs of Lod, to the pinnacle of the halakhic hierarchy as the most important mitzva, and the only one that sets aside the three cardinal transgressions. (Rabbi Ari Yitzchak Shevat, "Gilui Arayot Lema'an Bitachon ha-Medina," in Techumin vol. 30)
There is no doubt that those engaged in the practical realities of intelligence, espionage, and counter-espionage operations literally risk their lives to save the Jewish people, and as we have seen, despite the severity of the prohibitions of idolatry or forbidden sexual relations, these may also be permitted – for the sake of saving Klal Yisrael.
הרב אביהוד שוורץ - vbm
[1] In this context, see the comprehensive article of my revered teacher, "Aveira li-Shema: Hirhurim be-Halakha u-be-Machshava," published in his book, Musar Aviv (in the Mitzvot section, pp. 163ff.).
[2] The commentators have addressed the question of whether Yael was in fact Jewish and whether she was married to Chever HaKeni at the time. Chazal assume that the answer to both questions is in the affirmative. (Editor’s note: The Gemara’s presumption that they engaged in sexual relations is also not universal among commentators.)
[3] For a comprehensive survey of the views of the Rishonim on this matter, see Rav Asher Weiss's shiur on Parashat Vayera, regarding the issue of "a transgression performed for the sake of Heaven," available on the Minchat Asher website.
[4] The various opinions were mentioned briefly in the Pitchei Teshuva (Even ha-Ezer 178, no. 3) and were summarized at length in Responsa Tzitz Eliezer (vol. 18, no. 1, note 9), in Responsa Mishneh Halakhot (vo. 17, no. 90), and in the aforementioned shiur of Rabbi Asher Weiss.
[5] In the framework of his responsum, the Noda bi-Yehuda deals with the question of the extent to which we can learn practical halakha from Biblical narratives and from Aggadic and Midrashic sources – a question which we too have discussed at length (in shiur 28, and especially in shiur 29).
[6] Rabbi Shlomo Goren served as the Chief Rabbi of Israel after Rabbi Isser Yehuda Unterman. Rabbi Unterman authored a lengthy and thorough article dealing with "The Parameters of Pikuach Nefesh" (published in the book, Be-Tzomet ha-Torah ve-ha-Medina," vol. 3), which addresses (among other things) the question of engaging in forbidden sexual relations for the sake of saving many people. However, like Rav Kook, Rabbi Unterman deals with examples discussed by the later poskim,mentioned above, but does not address a specific halakhic question pertaining to the security forces of the State of Israel.
[7] Apart from this, explains Rabbi Goren, if the spy is planted in a Moslem country, according to the Rambam and many other Rishonim, there is no problem of idolatry, but this is not the forum in which to expand upon the matter.
