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21.08.2018 19:18    Comments: 0    Categories: Weekly Parashah      Tags: torah  shabbat  devarim  ki tetze  

The Lesser Evil as a Halakhic Consideration in the Twentieth Century

The passage about a beautiful woman taken captive in war, as interpreted by the Sages, is an instance of having to choose between two undesirable alternatives.  The Torah, from the outset, did not wish to permit espousing women taken captive in war because they were gentiles.  On the other hand, the Torah could not prohibit them because of the fear that the warriors would not be able to withstand the temptation.

Thus the Torah chose the way of the “lesser evil,” permitting women to be taken captive in war, but with certain limitation as specified by Scripture.  As the gemara (Kiddushin 21 b) states:  “The Torah only provided for human passions:  it is better for Israel to eat flesh of [animals] about to die, yet [ritually] slaughtered, than flesh of dying animals which have perished.”  Nevertheless, from the juxtaposition of passages the Sages deduced that a man who marries a woman taken captive in war will ultimately have a rebellious and disobedient son born to him by her, as the midrash (Tanhuma Ki-Tetze 1) says:  “If he is saved from the one, he will not be saved from the other, to teach us that one transgression brings another in its wake.”

This issue brings up the issue of the attitude taken by halakhic discourse towards choosing the lesser evil.  In mundane matters, when a person is forced to choose between two undesirable alternatives, naturally the lesser evil is preferred.  In making such a choice one essentially gives up one value for another.  In life, individuals are entitled to give up on something over which they have control or choice.

Two fundamental questions arise in this regard in halakhic discourse:  first, who is authorized to decide in a given situation that one sacred value should be given up in favor of another?  Second, and inseparably tied to the first, can fear of people giving in to their desires serve as a reason for giving up on some other sacred value from the outset?

The question of authority

In his Iggerot, the Hazon Ish[1] teaches that two fundamental capabilities are required in order to be considered a halakhic authority:  the first is a thorough knowledge of the entire Torah.  The second is a deep understanding of the reality of the case brought before him.  Hazon Ish adds:  “The stumbling blocks of faulty assessment of the circumstances are more numerous than the stumbling blocks in fundaments of Halakhah.”

In other words, most of the mistaken halakhic rulings result not from lack of understanding of the Halakhah, but from a lack of deep understanding of the reality at issue.  In his view, the masses are not authorized to rule on Halakhahsince they do not always thoroughly understand the reality before them.

The passage on a beautiful woman who is taken captive in war is an innovative ruling of the Torah.  Since it is the Law-giver who issued the proscription, naturally He can also waive it.  The question is whether the Rabbis were given authority to give up on one sacred value in favor of keeping another great value?

In practice, the complexity of life places halakhic authorities in a dilemma, requiring them to decide between two alternatives, neither of which is to be desired, and leaving them to choose which option is less bad than the other.  As we indicated, the passage on a beautiful woman taken captive in war cannot serve as the source substantiating the idea of the lesser evil; therefore, we have another source.

The Talmudic source for comes from Tractate Sota (48a), discussing the question of how to relate to mixed singing of men and women.  When men begin to sing the first verse of a song and women respond after them with the second verse the gemara calls this licentiousness (pritzuta).  When women sing and men join in, it is “like fire in tow.”

The Talmud asks what practical, halakhic distinction do we learn, both situations being undesirable?  The answer:  “To abolish the latter before the former.”  In other words, when we are forced into a position where we have to choose one of two bad alternatives, we should choose the lesser evil of the two.  In the case at hand, it is deemed better to choose the option defined as “licentiousness,” since that is less severe than what is dubbed “like fire in tow.”

The “lesser evil” in twentieth-century halakhic rulings

The twentieth century, more than any other, has posed numerous halakhic dilemmas that require relying on the question of the lesser evil in order to be resolved.  Here we present three examples of Halakhah, coming from different worlds (North Africa, Israel, and the United States) and pertaining to the subject at hand:

1) In the early twentieth century, Rabbi Yosef Mashash was asked to be Chief Rabbi of Tlemcen, Algeria.  Upon arriving there he found a Jewish community whose spiritual condition had greatly deteriorated due to the cultural influence of the French.  In his book (Resp. Mayyim Hayyim I, 143), he revealed the sad reality of the times:  all the Jewish butchers selling kosher meat in the city kept their shops open on the Sabbath and Festivals.

The dilemma facing the Rabbi was whether to remove their kashrut certificates,[2] thus causing the entire community to do wrong by eating non-kosher, or to enable them to maintain their kashrut certificates and try to minimize the damage.  Rabbi Mashash told of making numerous and prolonged attempts at convincing all concerned to close their shops on the Sabbath.  When he realized that his efforts were proving fruitless, Rabbi Mashash decided not to remove their kashrut certificates on the grounds that he detailed there.

2) The late Rabbi Ovadiah Yosef, when serving as Chief Rabbi of Tel Aviv, was asked whether it was proper to give a kashrut certificate to a meat restaurant that had dairy ice-cream on its dessert menu.[3] This illustrates the question of the lesser evil:  if the Rabbinate were to refuse a kashrut certificate, the restauranteur might serve his customers treif and dishes that contained both meat and milk.  If he were given a certificate, a few individuals might transgress the prohibition against mixing milk and meat.  Rabbi Ovadiah Yosef decided to give the restaurant a certificate, ruling against the position taken by Rabbi Moshe Feinstein (Iggerot MosheYoreh De`ah 52) and Rabbi Eliezer Waldenberg (Tzitz Eliezer Part 12, addendum to Part 11. 55).

3) In 1963, Rabbi Moshe Feinstein (Iggerot MosheOrah Hayyim 4.35) was asked if it was proper to open a dance club for singles within the context of the Jewish community.  The object was to reduce the number of mixed marriages by facilitating the meeting of singles within the community.  This, too, was a matter of the lesser evil:  if such a club were not opened, Jewish men would go dancing with non-Jewish women and would be likely to marry them.  If such a club were to be opened, the problem would be limited to that of mixed dancing.

Rabbi Feinstein ruled against opening such a club.  In his responsum he stipulated three halakhic principles pertaining to the matter:

First, that one should not give permission to the community at large to do something which is prohibited by the Torah, even if that thing is done in the name of achieving some other value.

Second was a question of assessing the reality implicit in the question:  in Rabbi Feinstein’s opinion, one could not know whether Jewish singles would refrain from going to the non-Jewish clubs which they had been frequenting, so there was no certainty that the objective would be achieved.

The third involved a new interpretation of the gemara in Tractate Sota.  Feinstein asserted that choosing the lesser evil pertains only when the two alternatives actually exist and the Rabbi can choose the less bad option, but that the gemara does not apply to creating a new alternative.  Thus, in Feinstein’s view, permitting the “lesser evil” did not apply to the circumstances at hand.

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