Acts and Consequences
One of the most interesting features of Pinhas’ act of zealotry is how it was understood from the perspective of halakha, Jewish law. To what extent did it constitute a precedent? Pinhas saved the nation from what we can only assume would have been dire consequences. Twice before, in the context of the Golden Calf and then again in the case of the spies, God had threatened to destroy the whole people. Only the impassioned prayers of Moses had swayed the verdict from retribution to compassion. It is hard to underestimate the consequences of a third offence that was at least as serious as those that had gone before.1By consorting with the Midianite women and then joining in the worship of their gods, the people had been guilty of both sexual immorality and idolatry, a potentially more serious breach of the covenant than either the Golden Calf or the episode of the spies.
Indeed, the biblical text is explicit about this. God told Moses: “Pinhas son of Eleazar, son of Aaron, the priest, has turned My anger away from the Israelites by being zealous with My zeal in their midst so that I did not put an end to them in My zeal” (Num. 25:11). He saved the people by his act, as Moses had previously done by his prayers. A psalm praises his behaviour in the highest of terms:
They yoked themselves to the Baal of Peor and ate sacrifices offered to lifeless gods; they aroused the Lord’s anger by their wicked deeds, and a plague broke out among them. But Pinhas stood up and intervened, and the plague was checked. This was credited to him as righteousness for endless generations to come. (Ps. 106:28–31)
The reasonable assumption, therefore, is that he would be held as a role model of heroic action in defence of the nation.
Yet Jewish law placed three sharp limitations on what could be inferred from the episode. The first is that, had Zimri turned around and killed Pinhas instead, Zimri would be deemed innocent since he would have been acting in self-defence (Sanhedrin 82a).
Second, Pinhas was only warranted in what he did because he acted while Zimri and Cozbi were still engaged in their sexually immoral act. Had he delayed for even a moment after they had separated from one another, he would not be permitted to do what he did, and had he done so he would have been guilty of murder (Sanhedrin 82a).
Third, as we saw in the previous essay, had Pinhas asked a halakhic authority – Moses, or any of the judges – whether he was permitted to do what he was about to do, the answer would have been no. This is a rare instance of the rule called halakha ve’ein morin ken, “It is a law that is not taught” (Sanhedrin 82a).
The Jerusalem Talmud goes further still. It says that the sages of the time sought to excommunicate Pinhas, and would have done so had not the Holy Spirit hastened to say, “He and his descendants will have a covenant of a lasting priesthood, because he was zealous for the honour of his God and made atonement for the Israelites” (Num. 25:12).2Y. Sanhedrin 9:7.
This is all deeply puzzling. If Pinhas was wrong in what he did, why do the Torah and the book of Psalms praise him in so fulsome a way? But if he was right and acted in accordance with the law, then his conduct should serve as a positive role model for future generations, and the law ought to be taught. That, after all, is the purpose of law: to guide us, especially in situations of dilemma like the one Pinhas faced.
Ideally, no doubt, he or others should have brought Zimri to court. But this was no time to go through standard legal procedures. A plague was raging. People were dying in their thousands. It was clear that something had to be done immediately. Why does Jewish law rule that in such a case, though the act is permitted, the court or a halakhic authority is allowed to say that it is not permitted?
The rabbis were evidently also troubled by the fact that, while Zimri and Cozbi’s act was committed in the sight of the whole nation, Pinhas seems to have acted on his own initiative. Why did Moses not act? Did Pinhas ask permission from him before he acted, or not? If he did not, then surely he was guilty of precisely the sin for which two of his uncles, Nadav and Avihu, died on the day the Sanctuary was consecrated, namely acting spontaneously without first asking permission. But if he did ask Moses, and Moses gave him permission to act, then how could the rabbis conclude that this was a case of halakha ve’ein morin ken, where we are not allowed to disclose the law? The Babylonian Talmud, sensitive to these difficulties, tells the following story:
Zimri seized Cozbi by her coiffure and brought her before Moses. “Son of Amram,” he said, “Is this woman forbidden or permitted? And should you say, ‘She is forbidden,’ then who permitted you to marry the daughter of Yitro?” At that moment Moses forgot the halakha [concerning intimacy with a heathen woman], and all the people burst into tears. That is why it is written that the people were weeping before the door of the Tabernacle of the congregation. It is also written, “And Pinhas son of Eleazar, son of Aaron, the priest, saw it.” What was it that he saw? Rav said: He saw what was happening and remembered the halakha, and said to him, “Great-Uncle, did you not teach us this when you came down from Mount Sinai: he who cohabits with a heathen woman is punished by zealots?” Moses replied, “He who reads the letter, let him be the agent to carry it out.” Shmuel said: He saw that there is neither wisdom nor understanding nor counsel against the Lord; whenever the divine name is being profaned, honour must not be paid to one’s teacher. R. Yitzḥak said in R. Elazar’s name: He saw the angel wreaking destruction amongst the people. (Sanhedrin 82a)
As we noted, the reason Moses did not act, according to the sages, was that he himself had married a Midianite woman. He would have been accused of hypocrisy by the people and would have failed to halt the breakdown of order. The Talmud then gives three alternative accounts of what happened and why. Rav said that Pinhas did consult with Moses, who answered him obliquely, not saying but clearly implying that he should act. This is consistent with the principle that the law in question is a case of halakha ve’ein morin ken, a law that is not taught but may be hinted at.
Shmuel invokes a different principle altogether, that Pinhas acted on the basis of the rule that where there is ḥillul Hashem, a desecration of God’s name, it is not necessary to ask permission of one’s teacher or any other halakhic authority. To do so would be putting the honour of another human being before the honour of God. R. Elazar suggests, simply, that it was none of these considerations that were at stake but something else altogether, namely pikuaḥ nefesh, saving lives. A plague was raging and Pinhas acted to bring it to a halt.
The halakhic discussion is complex, and my concern here is not to analyse the various views but to suggest one way of thinking about the ethical issues involved.
Pinhas was not acting within the normal parameters of the law. Zimri, by cohabiting with Cozbi, may or may not have committed a sin that carried the death sentence, but if he did, then Pinhas was executing punishment without a trial. There are extenuating circumstances in Jewish law in which either the king or the court may execute non-judicial punishment to secure social order.3See Maimonides, Mishneh Torah, Hilkhot Sanhedrin 24:4; Hilkhot Melakhim 3:10.
But Pinhas was neither a king nor acting as a representative of the court.
Whether or not he received tacit permission from Moses, he was a private individual acting on his own initiative, not as an agent of the court or an official representative of the people. That is why, had Zimri turned round and killed Pinhas before Pinhas had a chance of killing him, he would have been deemed innocent of murder since he was acting in self-defence. Zimri had not been found guilty by a court of law. Therefore he had not forfeited any of his rights, including the right to self-defence.
Likewise, it was essential that Pinhas acted while Zimri and Cozbi were engaged in their act. Normally a judicial procedure is necessary to establish, on the basis of witnesses, that the accused has committed the act for which he stands indicted. However, in this case Zimri and Cozbi were actually engaged in the act at the time, and were doing so in full public view. The entire community was witness to it. This is what Rashi meant when he said that “everyone could see that he did not kill them without just cause” (commentary to Num. 25:8).
It may be, however, that Pinhas killed Zimri not because he was guilty of a specific offence, but because his behaviour was endangering the entire community, who had already incurred divine anger, and would do so even more were he and Cozbi allowed to continue in their defiance without anyone acting to prevent them. He was, in other words, a rodef, a “pursuer,” vis-à-vis the community as a whole.4This, according to Rabbi Zvi Hirsch Chajes, is why a king or the Sanhedrin are able to impose the death penalty for certain acts that threaten the social order, even if they are not capital offences in biblical law. See his Torat HaNevi’im, Kol Sifrei Maharatz Chajes, vol. 1 (Jerusalem: 1958), 48.
A “pursuer” may be killed extrajudicially to save the life of the pursued if this is the only way of stopping him from killing. But this only applies while he is actually pursuing, not subsequently when the damage has already been done.
There is, however, a simpler way of understanding the moral issue involved. To do so, we need to take a brief detour into ethical theory. It was Jeremy Bentham who famously argued that an action is right if it leads to the greatest happiness for the greatest number. Without going into details, what is distinctive about this way of seeing the moral life is that it focuses, not on law, or duty, or conscience, or virtue, but rather on the consequences of our actions.
There are two ways of thinking about consequences when it comes to making moral choices. The simple, direct way is to ask, “Will this act bring about the best possible consequences?” This is known as act utilitarianism. However, as many philosophers have pointed out, there are serious problems with act utilitarianism.
Imagine a situation in which a judge can prevent riots that will cause many deaths if he convicts an innocent individual and sentences him to a harsh punishment. According to act utilitarianism, he should do so. One person’s loss of liberty and justice is outweighed by the saving of many lives. Or imagine a doctor who can save five lives by killing a healthy individual whose organs he then uses to perform life-saving transplants. The saving of five lives outweighs the loss of one.
Every ethical instinct within us recoils from such conclusions. Morality is not a form of expediency. You cannot reduce the moral life to such calculations of loss and gain. That is why many thinkers attracted by Bentham’s idea have formulated a different version known as rule utilitarianism. This says that we should act only in accordance with rules, but the rules themselves are justified because they produce the best possible consequences.
Judaism has a place for rule utilitarianism in its overall moral vision. Whether or not it applies to biblical law, it certainly applies to enactments made by the king or the Sanhedrin for the sake of tikkun olam (social order), darkhei shalom (good community relations), and other such principles. They were enacted because they made life better for the members of society. They promoted the greatest good for the greatest number. However, there are rare circumstances in which act utilitarianism does enter the picture, in any moral system, not just that of the Torah. One famous theoretical example was introduced into the philosophical literature by one of my own tutors, the late Philippa Foot. It is a thought experiment known as the “trolley problem.”5Philippa Foot, “The Problem of Abortion and the Doctrine of the Double Effect,” Oxford Review 5 (1967): 5–15, reprinted in Philippa Foot, Virtues and Vices (Oxford: Blackwell, 1978).
Imagine there is a runaway trolley careering down a railway track. There are five people tied to the track, unable to move. You are watching this happen from the signal box. If you do nothing, the five will die. Beside you is a lever that, if you pull it, will switch the trolley to another track. To that other track one person is tied. Do you pull the lever, so that one person dies but five live? Or do you do nothing, because you do not wish to be responsible for the death of anyone? Act utilitarianism tells you to pull the lever. True, you would be responsible for one death, but at the same time you would have saved five lives.
Judith Jarvis Thompson broadened the discussion by imagining a similar but different case.6Judith Jarvis Thomson, “Killing, Letting Die, and the Trolley Problem,” The Monist 59 (1976): 204–217.
This time you are not in the signal box but on a bridge above the track. You see the trolley coming, and you see the five people tied to the track. Only by putting something heavy on the track can you stop the trolley and save their lives. Next to you on the bridge is a fat man. Should you push him over the bridge? He will die, but the trolley will be stopped and five lives saved. Again, act utilitarianism suggests you should push him.7We are assuming that you are too light to throw yourself over the bridge and stop the trolley. Otherwise, the moral dilemma would be different. It would be about the moral limits of self-sacrifice for the general good.
The difference between this case and the previous one seems to be that here you are deliberately causing someone’s death to save other people’s lives, whereas there you are saving other people’s lives, and the fact that someone else will die was not part of your intention. It is an unwanted and unintended consequence of pulling the lever to switch the tracks.
Many people are inclined to pull the lever, but disinclined to throw the fat man off the bridge. What, though, if the fat man was not an innocent bystander, but rather the person who tied the five people to the track, or at least one of a gang who had done so? Here, we might well feel that we ought to throw him off the bridge to save the five lives. By his guilt, he has forfeited his rights.
What is happening in these cases is that we are using act utilitarianism not as the basis of the moral life in general, but as a way of deciding how best to act in a situation in which there are no clean choices. Whichever way you act, you will be breaking a rule that in ordinary circumstances you should abide by. You should not stand idly by and do nothing when you could save five lives. But you should not cause someone to die by pulling a lever or throwing him off a bridge. You face, in the literal sense, a dilemma, that is, a choice between two courses of action, both of which are undesirable or, ordinarily, just plain wrong.
That is what was happening in the case of Pinhas. He had a simple choice: either do nothing and let more people die, or act extrajudicially and kill the two key culprits, Zimri and Cozbi. Pinhas’ act cannot be made the basis of a law, because of the unique circumstances in which he did what he did. He did not act on the basis of rule utilitarianism, because he was faced with two rules which clashed: (1) do not stand idly by while innocent people die, and (2) do not put an offender to death without a properly constituted trial. His behaviour was a classic instance of act utilitarianism, and the essence of act utilitarianism is that it is about specific situations, not general rules.
That is what the sages meant when they called it a case of halakha ve’ein morin ken, a law which should not be taught. It is why they hedged it around with qualifications. It only applied when the offence was committed in public, when the sentence was carried out while the sin or crime was being committed, and only if the person carrying it out was a “zealot.”
The truth is that an act like that of Pinhas can only be justified in retrospect, when it does actually produce the consequences it was intended to achieve. What is more, it is essential that it never becomes the basis of a general rule, because act utilitarianism has the effect of undermining all rules. Were a doctor to kill a patient to save five lives, no one would ever trust a doctor again. Were a judge to punish an innocent man to prevent a riot, no one would ever trust the judicial system again.
That is why, in praising Pinhas for his courage and zeal, God ensured that he would never act that way again, by making with him “My covenant of peace.” Rare indeed are the circumstances in which Pinhas-like zealotry is justified, and if anyone asks whether he may do so, the answer must always be, “No.”