Accounting 101

Pinchas, the son of Elazar, the son of Aharon, curbed My anger against the Children of Israel through championing My enmity among them and I did not destroy the Children of Israel in my enmity. (Sefer BeMidbar 25:11)

I. Pinchas the zealot

This opening passages of the parasha conclude the Torah’s discussion of an incident described at the end of the preceding parasha. Bnai Yisrael is camped at Shittim. The women of Moav accompanied by a princess of Midyan arrive in the camp. They seduce men from the nation. Following their successful seductions, the women induce their paramours to join them in idolatrous ceremonies or festivities. Hashem responds bringing a plague upon the nation. Also, He commands Moshe to direct the courts to take action against the sinners. Zimri, a leader of the tribe of Shimon appears before Moshe and his court. He brings with him Kazbi the princess of Midyan. In the presence of the court, he declares or demonstrates his intention to liaison with Kazbi and proceeds to carry out his intentions. 

Pinchas observes this and acts. He intrudes upon Zimri and Kazbi while they are intimate and executes both. He did not bring Zimri and Kazbi before a court for judgment. His action was extrajudicial. It was taken without the authorization of the courts. In this situation, the Torah allows and condones extrajudicial action. 

In the above passage, Hashem commends Pinchas. He explains that Pinchas’ bold action ended the plague that He had brought upon the people. In the following passages, Hashem describes Pinchas’ reward. 

This incident raises many questions. We will focus on one of these. Let us begin with an introduction. 

II. Intimacy between Jew and non-Jew

Presumably, Pinchas’ behavior was justified because Zimri violated one of the Torah’s mitzvot. What mitzvah was violated? Rambam – Maimonides – explains that a Jewish male or female may not engage in sexual intimacy with a non-Jew. The punishment for violation of this commandment is lashes. However, the commandment only prohibits sexual intimacy that is in the context of marriage. In other words, if a Jew and non-Jew live together as spouses, then their sexual intimacy is prohibited by this commandment. If the court tries them for violation of the commandment and they are found to be guilty, then the Jewish partner is subject to the consequences. 

Zimri did not enter into a marriage arrangement with Kazbi. Their intimacy was casual. What commandment did they violate? Rambam further explains that the Torah did not prohibit this casual relationship. The Sages prohibited this activity. One who violates the Rabbinic injunction is punished by lashes.[1] According to this ruling, Zimri did not violate a Torah commandment. It is unlikely or at least questionable that the Rabbinic injunction was in place at the time of the incident.  On what basis did Pinchas execute him and Kazbi? Rambam responds: 

Anyone who is sexually intimate with a non-Jew, whether in the context of marriage or casually, if the intimacy is public – that is the intimacy is before ten or more Jews, a zealot who attacks and kills him [or her] is praiseworthy and deeply committed [to the mitzvot]. This is a law that was given to Moshe at Sinai. The proof for this ruling is the incident of Pinchas and Zimri. (Mishne Torah, Hilchot Esurai Be’ah 12:4)

Rambam is addressing many issues. Two among them are the following:

·      He explains that Pinchas had the authority to carry out an extrajudicial execution. This authority was granted to the zealot at Sinai.

·      Also, he explains that the zealot has the authority even though execution exceeds the punishment that the court would impose for the same sin. He even has this authority when no mitzvah has been violated. In other words, even though one who has casual sexual relations with a non-Jew has not violated a Torah commandment, if the behavior takes place in a public setting, the zealot is permitted to carry out an extrajudicial execution and his zealotry is praiseworthy.[2] 

III. One violation, two punishments

In conclusion, there are two very different possible consequences for intimacy with a non-Jew. If the court adjudicates the violation, the violator may be subject to lashes. If the zealot intervenes, he has the authority to execute the violator. This poses the problem on which we will focus. How can a sin have two very different punishments? The punishment for the violation of a commandment should correspond to the significance of the commandment violated. Rambam explains this in his commentary on the Mishne.

The entire Torah is composed of positive commandments and negative commandments. [Concerning] negative commandments, the Torah specified the punishment for [the violation of] each of them, with few exceptions. The punishment for some is death, for some forfeiture of one’s afterlife, or death [at the hands of] the heavenly court, or lashes. From the punishment, we know [from among] the negative commandments which of them are more serious[3] prohibitions and which are less [serious]. There are eight degrees [of prohibition]. The first degree – these are the most serious [violations] among them – is those things for which one is subject to stoning….. (Rambam, Commentary on the Mishne, Mesechet Avot 2:1)

The more serious a violation the more severe is its punishment. It follows that for each prohibition there should be a single punishment for its violation. That punishment should correspond with the seriousness of the prohibition. Why does sexual intimacy with a non-Jew have two very different punishments? Furthermore, the two punishments make contradictory statements concerning the seriousness of the prohibition. The court, at most, can administer lashes for the violation. According to Rambam, lashes are given for the violation of less serious prohibitions. The zealot executes the violators. The punishment of death is reserved for the most serious prohibitions.[4]    

IV. Two perspectives on sin

Rambam makes a further comment that provides insight into the issue:

This sin, although, it does not have [the punishment] of death by the court, you should not regard as insignificant. It has to it a cost that none of the incest prohibitions share. A child born from incest is one’s child in all respects. [The child] is considered included in Israel even though [the child] is a mamzer. [However,] the child from a non-Jewish woman is not his child…. (Rambam, Mishne Torah, Hilchot Esurai Be’ah 12:7)

Rambam makes an important point. The seriousness of a violation cannot be determined solely by considering its punishment. The punishment only reveals the seriousness of the legal violation within the framework of the 613 commandments. But there is another dimension in which the seriousness of a violation must be measured – its practical consequences. An example will clarify this idea. 

Consider a married couple who have a single car that they share. One morning the husband takes the car without consulting his wife. He does not know or remember that his wife needs the car to travel to an interview. She prepares for the interview and goes out to the car. She suddenly discovers it is missing. She finds another means to travel to the interview but arrives late. Her late arrival is enough to persuade the interviewer that she will not be a reliable employee. 

From a legal perspective, the husband did not commit a serious crime or any crime. However, the practical consequences were substantial. A comprehensive measurement of the severity of wrongdoing must consider the practical fallout. 

Rambam is explaining that when one has a child from a union with a non-Jew, the consequences can be very significant. The child born from a non-Jewish woman is not part of the Jewish people. The punishment reveals only the seriousness of the legal violation. But the practical cost is enormous.

Rambam continues:

This thing causes one to cleave to the non-Jews, from whom the Sacred One, Blessed be He, separated us and to turn from [following] after Hashem and to trespass against Him. (Rambam, Mishne Torah, Esurai Be’ah 12:8)

Rambam explains that a union with a non-Jew leads to assimilation.[5] In short, the court punishes the violator of this prohibition with lashes. But the practical consequences – forfeiture of the offspring’s membership in the Jewish nation and the assimilation of the violator – are enormous.

V. Two perspectives and two punishments

Now, let us return to our question. Why and how can there be two very different punishments for a single prohibition? How can the violator be executed by the zealot but when tried by the court receive only lashes? The answer is that these two punishments reflect and respond to different aspects of the violation. From a strictly legal/halachic perspective, the violation is less significant than other sexual violations. It is not as serious as incest. The court’s punishment reflects this legal perspective. The zealot is not responding to the halachic aspect of the violation. He responds to the practical consequences of the violation. His response considers the impact of the behavior on the violator and the greater community of observers. The violation takes place publicly. It normalizes behavior that endangers the wellbeing of the community at an existential level. The zealot’s execution of the violator responds to this practical perspective.

VI. The final judgment

Bait HaLeyve generalizes this idea and uses it to explain a comment of the Sages.  The Sages explain that after one’s death one is judged, and an account is taken of one’s actions.[6] The Sages are describing two aspects of the Divine judgment. What is the difference between these two aspects – being judged and an account being taken? Bait HaLeyve responds that our actions will be evaluated from two perspectives. One is judgment.  The judgment considers only the inherent nature of the action. Is the action consistent with the Torah’s expectations or contrary to them? 

In taking an account of our actions, the Divine court scrutinizes the consequences of our behaviors. What were the outcomes – the good and evil – that our actions produced. Our actions influence and impact others. They encourage others and create an environment in which others will act. Some actions have far-reaching negative or positive impacts. We bear some responsibility or credit for these outcomes.[7]

[1] Rabbaynu Moshe ben Maimon (Rambam / Maimonides) Mishne Torah, Hilchot Esurai Be’ah 12:1-2.

[2] For a more thorough discussion of the halachic aspects of the zealot’s authority see my essay on this subject. It is in Chidushim of Sefer BaMidbar (Rabbi Eliezer Barany, ed.) pp. 178-182.

[3] The Hebrew term used by Rav Yosef Qafih in his translation from Arabic is chamor. The term is difficult to translate in this context. “Serious” is a very loose and admittedly inaccurate rendering. 

[4] Rabbaynu Moshe ben Maimon (Rambam / Maimonides) Commentary on the Mishne, Mesechet Avot 2:1.

[5] Two personal reflections are relevant. First, Rambam is stating a generality. Some of the finest students with whom I worked have a non-Jewish parent. A Jewish parent who is married to a non-Jew can raise a committed Jewish child. However, there are many obstacles and this outcome is far from likely.  Second, some years ago, I was asked to organize and conduct mincha at a shiva home. The departed was a long-time stalwart of his Orthodox synagogue. Most of those present were his children, grandchildren, and great-grandchildren. His children had married Jewish spouses but many of the grandchildren intermarried. I invited those great-grandchildren whose mothers were Jewish to participate. I was shocked by the response of one of these young people. He told me he was not Jewish. He had no inkling of his halachic status. 

[6] Mesechet Avot 3:1.

[7] Rav Yosef Dov Soloveitchik, Bait HaLeyve – Commentary on the Torah, Parshat Noach.