Chapter 4, part two
When can we ignore laws?
I generally avoid discussing technical matters but I am making an exception here because it is not that technical, the issue is mentioned in part one of chapter 4, and I give what I think are interesting examples in this part. The issue is when can laws, even Torah laws, be ignored, and why did some prophets and other Jewish leaders do so?
Midrash Sifrei Deuteronomy 175 and the Babylonian Talmud, Yevamot 90b, allow a prophet to act contrary to Torah law when the “extraordinary needs of the time” require it. Commenting upon Deuteronomy 18:15, which requires people to obey prophets, the Midrash and the Talmud state that one must listen to the prophet “even if he directs you to violate one of the commands recorded in the Torah – just as Elijah did on Mount Carmel [in I Kings 18] – obey him in every respect in accordance with the needs of the hour (lefi sha’ah).” Elijah brought sacrifices outside the prescribed area, a prohibited act that was punishable by death, but it was permissible in this instance lefi sha’ah, for it was necessary to disprove the prophets of Baal, demonstrate that the idols had no power to produce miraculous fire to burn a sacrifice on an altar, and show the people that God is the true deity.
Sanhedrin 46a contains another example. It states: “Rabbi Eliezer ben Jacob said, ‘I heard that the court may [when necessary] impose flagellation and pronounce [capital] sentences even when they are not [warranted] by the Torah. This is not done to disregard the Torah, but in order to make a fence around it [i.e., safeguard it]. It once happened that a man rode on the Sabbath during the Greek era [when the invading Greeks ordered Jews to violate Torah laws]. He was brought before the [Jewish]court and stoned. It was not because he was liable [by law] to this penalty. It was done because of hasha’ah tzrikhah [it was required by the circumstances of the time]. It also happened that a man had intercourse with his wife [in public] under a fig tree. He was brought to the court and flogged [during this Greek period]. This was also not done because he merited it. Rather it was required by the circumstances of the time.’”
Maimonides addresses the issue of lefi sha’ah and hora’at sha’ah and hasha’ah tzrikhah, both terms expressing the same idea, in several places. In his Mishneh Torah, Hilkhot Yesodei Hatorah 9:3, for example, he writes about prophets and repeats the law contained in the Midrash and Talmuds mentioned above: “When a prophet…tells us to violate one or many of the Torah mitzvot…it is a mitzvah to listen to him. We learned this from the early sages, who had it as a part of oral law…we must accept his [the prophet’s] decree in all things except idol worship according to the needs of the hour [lefi sha’ah]. For example, Elijah [in I Kings 18] sacrificed on Mount Carmel, outside the Temple premises.”
In his Perush Hamishnah to Sanhedrin 6:2, and in his Mishneh Torah, Hilkhot Sanhedrin 18:6, Maimonides clarifies that the authority to execute Achan in Joshua 7 who stole items at Jericho after Joshua ordered that no one should take booty, Joshua had a vision that Achan took the items, and Achan confessed to his crime. He was executed for the theft by the authority of hora’at sha’ah since Jewish law does not inflict capital punishment upon a person who confesses theft or based on the testimony of a prophet who had a vision that the defendant committed the crime.
In his Mishneh Torah, Hilkhot Mamrim 2:4, Maimonides indicates that the power derived from Deuteronomy 18:15 was also given to a court without a prophet. A court may abolish a biblical law temporarily, but only as a hora’at sha’ah (a ruling to meet the unusual needs of the hour). If the court sees that it is necessary to strengthen Judaism by rendering corporal or capital punishment that is not sanctioned by the Torah, it may do so, but only as a temporary measure to bring many people back to Judaism. This, he continues, resembles a situation in which a doctor may see that it is necessary to amputate an arm or a leg in order to save a person’s life. It is also like the rule in the Babylonian Talmud, Yoma 85b: one should desecrate a single Sabbath to save a person’s life and make it possible for him to observe many Sabbaths.
Maimonides gives another example in his Hilkhot Sanhedrin 24:4. The religious leader Shimon ben Shetach killed eighty women who practiced witchcraft in a single day, as indicated in Mishnah Sanhedrin 6:4, even though women are not killed in this manner and a court may not kill more than a single person in a single day. This execution was necessary because the notion of witchcraft was widespread and was drawing the masses away from proper Jewish thought.