Rabbi Bernard Fox
“And Pinchas, the son of Elazar, (who was) the son of Aharon, saw. And he arose from among the assembly and he took a spear in his hand.” (BeMidbar 25:7)
It is interesting that there are certain practices that are generally taboo among Jews, regardless of the level of their commitment to traditional Torah values. One of these pervasive taboos is intermarriage between Jews and non-Jews. On occasion, non-Jews have remarked to me that this attitude strikes them as xenophobic. But – in truth – this is not an expression of xenophobia. One of the factors that seem to underlie this inhibition is the association between intermarriage and assimilation. This association is so strong that the statistic most often used to measure the rate of assimilation among Jews is the intermarriage rate. The implied message is that intermarriage and assimilation are somewhat synonymous. In other words, this association is based on the premise that intermarriage, almost inevitably, will lead to the assimilation of the Jewish partner in the marriage. Is there a Torah basis for this association?
Maimonides explains that it is prohibited for a Jew to have sexual relations with a non-Jew. The punishment for violating this negative commandment is lashes. Maimonides adds that the Torah is determined to preserve the commitment of Bnai Yisrael to Torah observance. In order to create a barrier against assimilation, the Torah allows only for intimate relations between Jews. Intimacy between individuals creates strong emotional bonds. These emotional bonds will lead to assimilation of each other’s values. If the two individuals share the same religious outlook, then this bond will allow each to reinforce the other’s values. But, if their religious values conflict, then the religious identity of one or both of the partners will be jeopardized.
Maimonides’ assessment of the effects of intermarriage is not merely based on psychological and sociological insight. His position is founded upon an incident described in our parasha.
Our parasha begins by recounting the efforts of Balak , the king of Moav, to defeat Bnai Yisrael. Balak hired Bilaam to curse Bnai Yisrael. Bilaam was believed to have supernatural powers. Balak believed that if Bilaam could be induced to curse Bnai Yisrael, then Moav could successfully defeat Bnai Yisrael in battle. However, rather than cursing Bnai Yisrael, Bilaam blessed them. Balak realized that Bnai Yisrael could not be cursed. Balak and Bilaam separated. Each returned to his home.
The end of the parasha discusses a related incident. Bnai Yisrael are camped in Shittim. This placed them in close proximity of Moav. Familiarity developed between the men of Bnai Yisrael and the women of Moav. These relations became intimate and sexual. Soon, these men and women began to share cultures. This led to these men associating with the idol of Moav – Ba’al Peor.
Our Sages concluded that this incident in our parasha in which sexual intimacy progressed into assimilation was not an isolated, behavioral aberration. Instead, the incident represents an example of normative human behavior. It can generally be assumed that sexual intimacy will result in emotional bonds, and these bonds promote assimilation.
The account of this incident ends with a violent, and somewhat disturbing turn of events. A member of Bnai Yisrael brought a woman from Midyan into the midst of the people and openly engaged in intimate sexual behavior with her. Pinchas, the son of Elazar and the grandson of Aharon, observed this travesty and reacted. He seized a spear and drove it through the two of them.
This incident is codified into halacha. But, before we can consider halacha’s treatment of this incident, some basic background is needed. As we have noted, Maimonides explains that sexual intimacy between Jews and non-Jews is prohibited. He further explains that the Torah only prohibits intimate relations between the Jew and non-Jew in the context of marriage – if the two participants live together. Although casual sexual liaisons are also prohibited, the Torah does not empower the courts to punish this behavior. However, the Sages did institute a punishment of lashes for this activity.
On the surface, these laws seem to contradict the implications of the incident in our parasha. The two individuals executed by Pinchas were engaged in sexual relations. But, the context of marriage was missing. No explicit Torah law was violated – the Torah only explicitly prohibits sexual relations in the context of marriage. What basis and authority did Pinchas have for executing these two people? Furthermore, even if these two individuals had violated the law prohibiting relations between Jew and non-Jew, the punishment for violating the commandment is lashes. But, Pinchas executed these two people!
This issue is discussed in the Talmud, and Maimonides codifies the discussion. He explains that if the Jew and non-Jew publicly engage in sexual relations, a zealot – like Pinchas – is permitted to execute the participants. Furthermore, the zealous behavior is praiseworthy! In other words, Pinchas is vindicated. The two people that he responded to had made a point of conducting their liaison in public. He observed this overt, public sexual behavior between a Jew and non-Jew, and he assumed the role of the zealot. Not only was he permitted to do so, his behavior was worthy of praise!
Already, a number of questions emerge. According to Maimonides, the two people executed by Pinchas had not violated an explicit Torah prohibition. Yet, Pinchas was permitted to execute them, and was praised for doing so. How is it possible to endorse the execution of two people that have not violated any explicit law on the Torah level?
Ra’avad raises a second issue. Generally, before a person can be executed, he must be warned that he is violating a commandment. Maimonides makes no reference to this requirement in the case of the zealot. Apparently, the zealot can carry out an execution without providing a prior warning. Of course, these two questions are related. Since – according to Maimonides – no explicit Torah commandment is being violated, it would be impossible to provide a warning. What commandment would serve as the basis for the zealot’s warning? However, Ra’avad’s question does indicate that Maimonides’ position results in a fundamental deviation from normative halacha – an execution can take place without prior warning.
If we proceed further in Maimonides’ discussion of this area, additional questions emerge. Maimondes explains that the zealot can only act at the moment of the incident. But, once the two partners are no longer engaged in sexual activity, the zealot is not permitted to act. Now, if the zealot is allowed to execute these individuals because of the inappropriateness of their behavior, what difference does it make whether the execution takes place while the two people are still sexually engaged, or whether it takes place soon afterwards? If their behavior is so seriously sinful as to deserve execution, the zealot should be permitted to carry out this punishment even after the sexual activity has ended.
Maimonides follows this ruling with another that is, perhaps, the most astounding of his comments. If the zealot asks the court to advise him, the court cannot tell the zealot to carry out the execution. Maimonides adds that, furthermore, if the person the zealot is attempting to execute defends himself and kills his assailant, he is not liable.
Let us consider these two rulings. The court cannot direct the zealot to act, or even confirm that it is proper to do so. How is it possible for Maimonides to maintain that the zealot is acting properly and that his behavior is praiseworthy, and, at the same time, contend that the court cannot direct or even confirm the propriety of this behavior? In addition, if the zealot is acting properly, then what right does the sinner have to kill the zealot?
In order to resolve these questions, we must better understand the Torah’s position regarding normative punishments. The courts are charged with the duty of enforcing observance of these commandments. The courts have the authority and responsibility to punish specific violations. Their role is to determine whether a crime or sin has been committed. If their judgment is that this is the case, then the guilty party has a liability to receive the punishment. The court merely responds to this liability. In carrying out a punishment, the courts are completely reactive. A liability to receive punishment has been determined to exist. The court reacts and responds to this liability.
Let us contrast this to the execution carried out by the zealot. A zealot is a person who is deeply committed to his convictions. If these convictions have a firm basis – as in the case of a person who is zealous in regard to the Torah, then a zealous attitude is appropriate. However, the zealot is not reactive. No court has judged the case, and no liability to receive punishment has been created. The zealot is not responding to a liability. Instead, he acts upon a personal commitment to protect the Torah. In the specific case of a Jew engaged in overt, public sexual behavior with a non-Jew, this zealot is permitted to, and commended for, acting on his convictions.
In short, a normative punishment stems from a liability within the convicted sinner or criminal to be punished. The courts merely respond to this liability. In contrast, the zealot acts out of personal conviction and is not responding to a liability created through a court judgment.
Based on this distinction, the questions we have outlined can be resolved. First, how can the zealot execute a person for sexual activity with a non-Jew if the Torah is only explicit in prohibiting this behavior in the context of marriage – and ,even then, only condemns the sinner to lashes? This question is easily resolved. The zealot is not responding to a liability created by the violation of an explicit Torah mitzvah. In fact, the court has not convened and judged the person. The zealot is permitted to take action – in this specific case – as an expression of the intensity of his own convictions. Therefore, the absence of any violation of an explicit mitzvah, punishable by death, is not a factor.
Ra’avad’s question on Maimonides is also answered. It is true that, in this case, the zealot is not required to warn the violator that he is violating the Torah. But, this requirement of providing a warning is designed to determine the culpability of the sinner or criminal. In other words, his guilt can only be established if he has first been warned. But, the zealot is not acting in response to the guilt of the sinner. He is given the authority to express his zealousness. Therefore, no prior warning is needed.
Why can the zealot only act at the moment at which the sexual behavior is taking place? This seems to be the question that is most easily answered. The sinner that the zealot seeks to punish has not been found guilty in a court. The zealot can only act because the Torah allows him to give expression to the depth of his convictions. But, the zealot is not permitted to be an avenger. He is permitted to bring this public desecration to an abrupt and emphatic end. Therefore, his authority is limited to the time at which the sin is occurring. But, once the sexual act has ended, the zealot no longer has a role. Now, only the courts can act.
Why can the courts not direct the zealot? First, the courts decide innocence or guilt on the basis of specific principles of jurisprudence. The sinner has not been judged. So, the court is in no position to issue a statement regarding the guilt of the sinner. But more importantly, a zealot acts out of the strength and depth of his own personal convictions. If this person must first go to the court for approval of his actions, then his claim of zealousness is questionable.
Why is the sinner who defends himself and kills his assailant – the zealot – not held responsible for this killing? Again, the sinner has not been found guilty of a crime by the courts. He does not have a liability to receive a punishment. The zealot acts out of his own convictions, and is not responding to any liability that that been established by the courts. Therefore, the sinner has the authority to defend himself, just as any other person has the right to kill another individual in his own self-defense.
This discussion is rather technical, but, from it, an important point emerges. The Torah does not encourage the unrestrained expression of zealous attitudes. The Torah consists of 613 commandments. It is important for a Jew to have strong conviction in the truth of the Torah. However, irregardless of the strength of one’s convictions and the intensity of one’s zealousness, in most cases, one does not have the right to take the law into one’s own hand or violate any percept of the Torah. If the zealot had such authority, society would quickly become lawless and halacha would become meaningless. It is impossible in an ordered, just society, governed by a system of halacha, to allow one member to harm another or disregard halacha and then attribute his behavior to zealousness.
In response to a public display of intimacy between and Jew and non-Jew, the Torah does make an exception and allows the zealot to give expression to his convictions. But, as the discussion above indicates, this does not mean that the zealot is permitted to ignore any and all halachic considerations in order to address the wrong he observes. On the contrary, the rights and authority of the zealot are strictly prescribed and defined. If he deviates from these rules – for example, if he kills the sinner after the act has been completed – he is no longer defined by halacha as a zealot. Instead, he is an avenger and is himself guilty of murder.
 Rabbaynu Moshe ben Maimon (Rambam / Maimonides) Mishne Torah, Hilchot Esurai Be’ah 12:1.
 Rabbaynu Moshe ben Maimon (Rambam / Maimonides) Mishne Torah, Hilchot Esurai Be’ah 12:7-8.
 Rabbaynu Moshe ben Maimon (Rambam / Maimonides) Mishne Torah, Hilchot Esurai Be’ah 12:2.
 Rabbaynu Moshe ben Maimon (Rambam / Maimonides) Mishne Torah, Hilchot Esurai Be’ah 12:4.
 Rabbaynu Avraham ben David of Posquieres (Ra’avad) Critique on Maimonides’ Mishne Torah, Hilchot Esurai Be’ah 12:4.
 Rabbaynu Moshe ben Maimon (Rambam / Maimonides) Mishne Torah, Hilchot Esurai Be’ah 12:5.
 Rabbaynu Moshe ben Maimon (Rambam / Maimonides) Mishne Torah, Hilchot Esurai Be’ah 12:5.