Can Retson Hashem matter in Lomdus?: Mitsvah ha-Ba’ah ba-Aveirah and the Limitations of Formalism

We live in the universe Brisk hath wrought, and I do not propose to begin Cartesian-style from first principles.  So, in approaching the issue of mitsvah ha-ba’ah ba-aveirah, let us grant that the term “mitsvah” must be formally analyzed into such categories as de-Oraita/de-Rabbanan (biblical/rabbinic), rather than hamur/kal (severe/mild), de-rabbim/de-yahid (communal/personal) rather than rabba/zuta, (big/small), hiyyuvit/kiyyumit (obligatory/elective), ma’aseh/dibbur (action-based/speech-based), and the like.  Let us grant a similar analysis of “aveirah.”  Let us grant that “ha-ba’ah” must be interrogated to see whether it implies physical or legal necessary or sufficient causality, or simultaneity, etc.  Finally, let us grant a full conceptual compare-and-contrast regimen with such principles and categories as aseh doheh lo ta’aseh (positive commandments override negative ones) and lav ha-nittak la-aseh (negative prohibitions linked to remedial positive commandments) (and/or gadol kevod ha-beriyyot [great is human dignity],[i] va-hai ba-hem [“and live through them”],[ii] et al.).

Now, the accepted categories in the paragraph above can all be seen as formal rather than religious, by which I mean that they can be understood without checking whether they correspond to any belief(s), text(s) or experience(s) outside the formal boundaries of halakhic deliberation.  This can be seen as an advantage.  While the impact of logical positivism has proved less lasting than that of Brisk, I still find its wholesale destruction of metaphysical language challenging and productive.

The positivists argued that metaphysical language has no nafeka minnah (practical ramification), as any metaphysical statement (think “God is just”) is compatible with any observed data (think genocide).  In our conversation space, the first question is whether a proposition of the form, “Halakhah does not count mitsvot as fulfilled if they are done with stolen objects because God does not want mitsvot fulfilled with stolen objects” means something different, i.e., generates a different understanding of the practical or theoretical halakhah in a particular case, than the shorter proposition, “Halakhah does not count mitsvot as fulfilled if they are done with stolen objects.”

Let us turn to the Talmudic discussions.  In the Vilna Shas, the term mitsvah ha-ba’ah ba-aveirah is cited on Sukkah 30a with regard to olah sacrifices[iii] and the lulav in order to explain why one will not fulfill his obligation if he uses a stolen object;[iv] on Bava Kamma 94a with regard to making a blessing when taking hallah from stolen dough (according to R. Eliezer ben Yaakov); and on Berakhot 47b with regard to a minyan formed by illegally manumitting an eved Kena’ani (non-Jewish slave).  Other versions, cited by Rishonim, record it (on the equivalent of Sukkah 35a) with regard to an etrog taken from an ir ha-niddahat (city deserving destruction due to its mass idol worship) or from an asherah de-Moshe (a tree that was treated as a deity), each of which it is illegal to benefit from and both of which must be burnt.

The challenge posed by the Tosafists here is not so much to find the common ground among whichever of these positions one accepts le-halakhah (normatively), as to deal with the broad array of cases in which mitsvah ha-ba’ah ba-aveirah seemingly ought to be cited and is not.  This challenge is particularly acute, ironically, not where citing mitsvah ha-ba’ah ba-aveirah should generate a contrary result, but rather where it should generate the same result that a verse of the Torah is cited to generate, which appears to make the verse redundant.

Tosafot to Sukkah 9a specifically raise the question of why a verse is needed to prove that the mitsvah of sukkah cannot be fulfilled in a sukkah roofed with stolen materials.[v] Their answer is that the rule invalidating a mitsvah ha-ba’ah ba-aveirah is itself only de-Rabbanan, and therefore, were it not for the verse, such a sukkah would be valid on a biblical level.  There are many difficulties with this answer, some of which are raised in this same Tosafot, and most Rishonim and Aharonim treat it as unsatisfactory.  Among them is Minhat Hinnukh, to whose treatment of the issue we now turn.

Minhat Hinnukh himself offers the following complex resolution:[vi]

a)  Mitsvot aseh de-Oraita (positive biblical commandants) can be divided into two categories: those whose obligation precedes any condition external to the personhood of the obligated (Category A) and those whose obligation depends on such conditions (Category B).  As an example of the former, he cites tefillin, where the obligation is generated by Jewish maleness; as an example of the latter, he cites tsitsit, where the obligation is generated by Jewish maleness plus the wearing of an appropriate garment.

b)  The mitsvah de-Oraita of eating in a sukkah can itself be divided into the above two categories: on the first night, the obligation devolves on all male Jews, but on the other nights only on male Jews who eat a particular amount and type of food.

c)  Failure to fulfill a mitsvat aseh de-Oraita, when one is obligated to fulfill it (whether Category A or B), is considered a violation of Halakhah known as “bittul aseh;” failure to arrange for an external condition necessary to achieve obligation, however, is not such a violation.  Thus, there is no obligation to eat the appropriate amount and type of food on the second through seventh nights of Sukkot.

d)  Mitsvah ha-ba’ah ba-aveirah, with regard to Category A mitsvot, makes the attempted mitsvah-fulfiller guilty of bittul aseh; however, with regard to Category B mitsvot, it does not make the attempted mitsvah-fulfiller guilty of bittul aseh.

e)  Thus, with regard to the second through seventh nights of Sukkot, the principle of mitsvah ha-ba’ah ba-aveirah does not in practice ban eating in a sukkah roofed with stolen materials.  A Jewish male eating in such a sukkah would neither fulfill the mitsvah nor be guilty of bittul aseh.

f)  The verse cited to invalidate a sukkah roofed with stolen materials is therefore necessary even if mitsvah ha-ba’ah ba-aveirah applies to this case, because it declares that a Jewish male eating in such a sukkah on the second through seventh nights is, in fact, guilty of bittul aseh.

Thus far I have presented the pure mechanics of Minhat Hinnukh’s answer.  From a Brisker perspective, the rationale behind his approach is clear: mitsvah ha-ba’ah ba-aveirah is a din (legal qualification) in the ma’aseh ha-mitsvah rather than the heftsa shel mitsvah; namely, it invalidates the act but not the object.

This in turn raises the question of why sitting in a valid heftsa shel sukkah is sufficient to avoid bittul aseh with regard to Category B, but not with regard to Category A.  A possible answer is that with regard to Category A, bittul aseh is defined as failure to perform a ma’aseh ha-mitsvah that fulfills the mitsvah (ma’aseh kiyyum ha-mitsvah), whereas with regard to Category B, it is defined as failure to perform a ma’aseh ha-mitsvah simpliciter.  (This, in turn, requires us to claim that using an invalid heftsa shel mitsvah invalidates the ma’aseh ha-mitsvah and not just the kiyyum ha-mitsvah, the action and not just the fulfillment.)

The Brisker approach thus generates what I believe is a reasonably accurate positivist translation of Minhat Hinnukh, meaning that it accords with the formal content of every formally translatable statement made by him.  However, I will now argue that it utterly ignores the semantic content of Minhat Hinnukh.  Here is a roughly literal translation of some relevant sections of his exposition on this topic:

“It seems to me that there are two kinds of mitsvot aseh:

“1) One which is an obligation imposed on every Jewish male, such as tefillin and etrog and eating matsah.  A mitsvah such as this – if he fulfills it, he does the will of the Creator, may He be blessed and exalted, because he was thus commanded by the King Who is blessed, whereas if he is mevattel (nullifies) this mitsvah and does not lay tefillin or did not take the lulav, he was mevattel the mitsvah and acted against His will, may He be blessed, and he will certainly be punished.

“2) […] The general principle is that if he fulfills this mitsvah, he does the will of the Creator Who is blessed, whereas if he does not fulfill the mitsvah, he does not transgress His will; he just does not fulfill the mitsvah. […]

“So it seems that the reason that one does not fulfill one’s obligation with a mitsvah ha-ba’ah ba-aveirah is that the Holy One Who is blessed does not will this and it is not in accordance with His will that a defender become a prosecutor, as “I am God Who hates robbery with regard to olah sacrifices” (Isiah 61:8) […] Because of this, it is properly reasonable to say that he has not fulfilled his obligation with regard to the mitsvah, because this is not the will of the Creator, may He be blessed, and therefore he has not fulfilled the mitsvah.  This is properly reasonable with regard to mitsvot hiyyuviyyot […] but with regard to mitsvot that are not hiyyuviyyot, such as tsitsit and sukkah after the first day of the festival, if they are ba’im ba-aveirah (done via a transgression), it is true that he has not fulfilled the will of the Creator Who is blessed, because this is not His, may He be blessed’s, will, but it is only that he has not fulfilled it, and it is as if he is not wearing a garment at all or did not eat at all. […] Because, in truth, he is wearing tsitsit and eating in a sukkah, just that this is not in accordance with His will so it is as if he has not fulfilled the mitsvah, but we cannot judge him as if he has been mevattel the mitsvah, since regardless he is doing the mitsvah. […] But if the Torah specifically invalidates a stolen sukkah, it is as if he roofed with invalid roofing that did not grow from the ground or that can receive tum’ah (impurity), which is not a sukkah at all, so that if he eats inside it, he is like one eating in a house, for the Torah has decreed that this is not a sukkah at all. […]”

It should be clear that the Brisker analysis requires one to believe that much, perhaps most, of the language Minhat Hinukh uses here is meaningless blather.  Here is the same paragraph in literal Brisker translation, in the manner of Rudolf Carnap’s memorable positivist translation of Hegel[vii]:

“So it seems that the reason that one does not fulfill one’s obligation with a mitsvah ha-ba’ah ba-aveirah is that NOTHING […] because of this, it is properly reasonable to say that he has not fulfilled his obligation with regard to the mitsvah, because NOTHING.  This is properly reasonable with regard to mitsvot hiyyuviyyot […] but with regard to mitsvot that are not hiyyuviyyot, such as tsitsit and sukkah after the first day of the festival, if they are ba’im ba-aveirah, NOTHING it is only that he has not fulfilled it, and it is as if he is not wearing a garment at all or did not eat at all. […] Because, in truth, he is wearing tsitsit and eating in a sukkah, just NOTHING it is as if he has not fulfilled the mitsvah, but we cannot judge him as if he has been mevattel the mitsvah, since regardless he is doing the mitsvah. […] But if the Torah specifically invalidates a stolen sukkah, it is as if he roofed with invalid roofing that did not grow from the ground or that can receive tum’ah, which is not a sukkah at all, so that if he eats inside it, he is like one eating in a house, for the Torah has decreed that this is not a sukkah at all […]”

I suggest that something has been lost if the words of Minhat Hinnukh have become meaningless, and that it is worth considering whether we ought not make every effort to rediscover their meaning.

In the above exposition, I contend, Minhat Hinnukh clearly believes that there is a spiritual rationale to his legal distinctions.  In other words, in his system, it is legitimate to ask why God would regard someone who uses a stolen sukkah on the first night as transgressing His will, but not on the second night.  In yet other words, in his system, it is legitimate to reject approaches that make lucid formal distinctions on the basis of recognized formal categories if one cannot give spiritual significance to the halakhic outcomes thus generated.

This may have applications le-ma’aseh, as follows: in the Brisker translation, Minhat Hinnukh is bound to the claim that mitsvah ha-ba’ah ba-aveirah can only generate a pesul ma’aseh (a ruined action), not a pesul heftsa (invalid object).  From a formal perspective, it likely follows that mitsvah ha-ba’ah ba-aveirah should not invalidate a mitsvah performed with a heftsa stolen by someone else but which you legitimately acquired and/or legally own.

However, Minhat Hinnukh himself is free to contend that the type of pesul created by mitsvah ha-ba’ah ba-aveirah depends on the severity of the aveirah, or the public impact of the aveirah, or the relationship between the aveirah and the heftsa, or the centrality of the heftsa to the mitsvah – so long as he can explain why in each case that criterion is spiritually significant.  Thus, he may say in the case of a transferred stolen object that God does not will mitsvot that remind Him of other people’s sins any more than He wills mitsvot that remind Him of the mitsvah-performer’s sins.  This position is possible within the Brisker translation, but I contend it is vastly less likely than in the original.

I have presented this issue solely within the context of regaining access to a particular Aharon, but I presume that the potential implications for our own learning discourse are clear, especially for those of us prone to (excessive) legal formalism.

Rabbi Aryeh Klapper is Dean of the Center for Modern Torah Leadership and Rosh Beit Midrash of its Summer Beit Midrash Program, Instructor of Rabbinics and Medical Ethics at Gann Academy, and a member of the Boston Beit Din.

[i] The implications of these principles are spelled out in Berakhot 19b, Shabbat81b, and many other places.

[ii] This verse is used as the basis of the law that all obligations and prohibitions, with several exceptions, are waived in life-threatening situations; see Sanhedrin 74a and Yoma 85a.

[iii] In Sukkah, the statement is presented by R. Yohanan in the name of R. Shimon bar Yohai.  A version of the same statement appears on Bava Kamma 67a, but there it generates a halakhic principle related to property ownership rather than mitsvah ha-ba’ah ba-aveirah.

[iv] This law is presented by R. Ammi, whom the Talmud presents as disagreeing with R. Yitshak bar Nahmani.

[v] Tosafot ad loc., s.v. “ha-hu.”

[vi] Minhat Hinnukh, mitsvah 325.

[vii] Rudolf Carnap,  “The Elimination of Metaphysics Through Logical Analysis of Language,” in  Logical Empiricism at its Peak: Schlick, Carnap, and Neurath, ed. by Sahotra Sarkar, (New York : Garland Pub., 1996), 10–31.  Available at http://www.scribd.com/doc/10161587/01R-CarnapThe-Elimination-of-Metaphysics.