Introduction
The Talmud discusses if and when one can fulfill a mitzvah that is done by committing some kind of wrongdoing in the process. For example, there is the case of the person who steals a lulav (palm branch) and wants to fulfill the commandment to shake the lulav on the holiday of Sukkot. The Talmud explains that it is forbidden to do so with this stolen lulav on the first day of the holiday because there is a Torah requirement that the person themselves must own their lulav. Since they are not the rightful owners of that lulav when they’ve stolen it, that disqualifies them from using that lulav to fulfill the mitzvah. However, there is no requirement for the person to own the lulav in order to fulfill the commandment to shake the lulav on the remaining days of Sukkot. Nevertheless, because of the principle of “mitzvah ha-ba-ah be-aveira,” a mitzvah that comes by way of a sin, they are not allowed to do so on those remaining days. In other words, one cannot fulfill a mitzvah if they are performing the act by way of breaking the law.
What is so wrong with breaking the law to fulfill a positive commandment, though? Don’t the ends justify the means? And who does it hurt when one does a mitzvah in this manner? Does it hurt God, the person they stole it from, or the person trying to fulfill the mitzvah themselves? What do you think?
The Babylonian Talmud and the Jerusalem Talmud offer different answers to these questions, which shed light on the relationship between authorities (divine and human) and their subjects.
*Inspired by “Tales of the Stolen Lulav” by Rabbi Daniel Reifman.
Here are some questions to think about:
- Which relationship between God and people speaks more to you - the one depicted in the Babylonian Talmud (more democratic) or the Jerusalem Talmud (more hierarchical)?
- Does anyone or anything else suffer when one breaks the law for a greater purpose?
- When do you think “the ends justify the means,” and when must proper process be treated as the primary value?
The Babylonian Talmud's Version
וְאָמַר רַבִּי יוֹחָנָן מִשּׁוּם רַבִּי שִׁמְעוֹן בֶּן יוֹחַי: מַאי דִּכְתִיב: ״כִּי אֲנִי ה׳ אוֹהֵב מִשְׁפָּט שׂוֹנֵא גָזֵל בְּעוֹלָה״ — מָשָׁל לְמֶלֶךְ בָּשָׂר וָדָם שֶׁהָיָה עוֹבֵר עַל בֵּית הַמֶּכֶס, אָמַר לַעֲבָדָיו: תְּנוּ מֶכֶס לַמּוֹכְסִים. אָמְרוּ לוֹ: וַהֲלֹא כׇּל הַמֶּכֶס כּוּלּוֹ שֶׁלְּךָ הוּא? אָמַר לָהֶם: מִמֶּנִּי יִלְמְדוּ כׇּל עוֹבְרֵי דְּרָכִים וְלֹא יַבְרִיחוּ עַצְמָן מִן הַמֶּכֶס. אַף הַקָּדוֹשׁ בָּרוּךְ הוּא אָמַר: ״אֲנִי ה׳ שׂוֹנֵא גָזֵל בְּעוֹלָה״, מִמֶּנִּי יִלְמְדוּ בָּנַי וְיַבְרִיחוּ עַצְמָן מִן הַגָּזֵל.
And Rabbi Yoḥanan said in the name of Rabbi Shimon ben Yoḥai: What is the meaning of that which is written: “For I the Lord love justice, I hate robbery in a burnt-offering” (Isaiah 61:8)? The Gemara cites a parable of a flesh-and-blood king who was passing by a customs house. He said to his servants: Pay the levy to the taxmen. They said to him: Doesn’t all the tax in its entirety belong to you? If the taxes will ultimately reach the royal treasury, what is the point of paying the levy? He said to them: From my conduct, all travelers will learn and will not evade payment of the tax. So too, the Holy One, Blessed be He, said: “I the Lord... hate robbery in a burnt-offering.” Although the whole world is His and the acquisitions of man have no impact upon Him, God says: From My conduct, My children will learn and distance themselves from robbery, even from robbery unrelated to the needs of offerings.
The Jerusalem Talmud's Version
הלכה: לוּלָב הַגָּזוּל וְהַיָּבֵשׁ פָּסוּל כול׳. תַּנֵּי רִבִּי חִייָה. וּלְקַחְתֶּ֨ם לָכֶ֜ם. מִשֶׁלָּכֶם. וְלֹא הַגָּזוּל. אָמַר רִבִּי לֵוִי. זֶה שֶׁהוּא נוֹטֵל לוּלָב גָּזוּל לְמָה הוּא דוֹמֶה. לְאֶחָד שֶׁכִּיבֵּד אֶת הַשִּׁלְטוֹן תַּמְחוּי אֶחָד וְנִמְצָא מִשֶׁלּוֹ. אָֽמְרוּ. אִי לוֹ לָזֶּה שֶׁנַּעֲשֶׂה סֻנֵיגוֹרוֹ קַטֵּיגוֹרוֹ.
HALAKHAH: “A robbed or dried up lulav is disqualified,” etc. Rebbi Ḥiyya stated: You shall take for yourselves1Lev.23:40: You shall take for yourselves on the First Day a fruit of the splendor tree, date-tree palms, a branch of the rope tree, and brook-willows. The lulav is the young palm branch. While in the verse it is called “palm”, because the leaves of the palm-tree spread out from the spine of the branch like fingers of a hand, it is traditional to take a young branch with the leaves still tightly clinging to its spine. From this the name לולב “tube” (cf. Note 27)., from what is your own6Babli 29b; Sifra Emor Pereq17(2). The paragraph is a much shortened version of Lev.r. 30(6), starting with R. Ḥiyya’s statement and ending with the lesson “woe to this one …”. Rebbi Levi said, to what is one compared who takes a robbed lulav? To one who honored the ruler with a basket and it turned out that it belonged to the latter. One says, woe to this one whose defender7Greek συνήγορος. became his prosecutor8Greek κατήγορος..