In today’s page of Talmud, we learn of a dispute between Rebbi Meir and Rebbi Yehuda regarding food that had been cooked on Shabbat, violating one of the 39 acts that are forbidden on that day.
חולין טו, א
הַמְבַשֵּׁל בְּשַׁבָּת, בְּשׁוֹגֵג – יֵאָכֵל, בְּמֵזִיד – לֹא יֵאָכֵל, דִּבְרֵי רַבִּי מֵאִיר
רַבִּי יְהוּדָה אוֹמֵר: בְּשׁוֹגֵג – יֵאָכֵל בְּמוֹצָאֵי שַׁבָּת, בְּמֵזִיד – לֹא יֵאָכֵל עוֹלָמִית
With regard to one who cooks on Shabbat, if he did so unwittingly, he may eat what he cooked. If he acted intentionally, he may not eat what he cooked. This is the statement of Rebbi Meir. Rebbi Yehuda says: If he cooked the food unwittingly, he may eat it at the conclusion of Shabbat, (as the Sages penalized even one who sinned unwittingly by prohibiting him from deriving immediate benefit from the dish that he cooked). If he cooked it intentionally, he may never eat from it.
Then comes this strange detail:
וְהָאָמַר רַב חָנָן בַּר אַמֵּי: כִּי מוֹרִי לְהוּ רַב לְתַלְמִידֵיהּ – מוֹרֵי לְהוּ כְּרַבִּי מֵאִיר, וְכִי דָּרֵישׁ בְּפִירְקָא – דָּרֵישׁ כְּרַבִּי יְהוּדָה, מִשּׁוּם עַמֵּי הָאָרֶץ
Rav Chanan bar Ami said: When Rav issues a ruling to his students, he issues a ruling in accordance with the opinion of Rabbi Meir, and when he teaches in his public lecture delivered on the Festival, he teaches in accordance with the opinion of Rabbi Yehuda, due to his concern that the עַמֵּי הָאָרֶץ (ignoramuses) would treat the prohibition of labor on Shabbat with disdain?
Rav would change his halakhic guidance based on who was listening. If the audience was his students, who were a serious group and took the prohibition of cooking very seriously, he would teach the opinion of Rebbi Meir, who is somewhat more lenient. The students would understand the paramaters of this leniency, and would not abuse it. However, when teaching a group of עַמֵּי הָאָרֶץ - those who were not learned or particularly careful about Jewish Law, the same Rav would teach the opinion of Rebbi Yehuda. Had Rav taught the opinion of Rebbi Meir, the עַמֵּי הָאָרֶץ would conclude that violation of the rules of Shabbat can be taken lightly.
This notion that the rules can change based on who is listening has an echo in the Torah and in several other places in the Talmud. So let’s take a deep dive into the topic, starting with the story of Pinchas and his extra-judicial killing of Zimri and Cozbi:
The Murder of Cozbi and Zimri
The Torah recounts the murder of Zimri, one of the leaders of the tribe of Shimon and Cozbi, a Midianite woman who were caught in flagrante delicto by Pinchas. Here is a reminder of what Pinchas did:
במדבר 25:7-8
וַיַּרְא פִּינְחָס בֶּן־אֶלְעָזָר בֶּן־אַהֲרֹן הַכֹּהֵן וַיָּקם מִתּוֹךְ הָעֵדָה וַיִּקַּח רֹמַח בְּיָדוֹ׃ וַיָּבֹא אַחַר אִישׁ־יִשְׂרָאֵל אֶל־הַקֻּבָּה וַיִּדְקֹר אֶת־שְׁנֵיהֶם אֵת אִישׁ יִשְׂרָאֵל וְאֶת־הָאִשָּׁה אֶל־קֳבָתָהּ וַתֵּעָצַר הַמַּגֵּפָה מֵעַל בְּנֵי יִשְׂרָאֵל׃
When Pinchas, son of Eleazar son of Aaron the priest, saw this, he left the assembly and, taking a spear in his hand, he followed the Israelite into the chamber and stabbed both of them, the Israelite and the woman, through the belly…
God approves of these killings, as the opening of Parshat Pinchas makes clear:
במדבר 25: 10-15
וַיְדַבֵּר יְהֹוָה אֶל־מֹשֶׁה לֵּאמֹר׃ פִּינְחָס בֶּן־אֶלְעָזָר בֶּן־אַהֲרֹן הַכֹּהֵן הֵשִׁיב אֶת־חֲמָתִי מֵעַל בְּנֵי־יִשְׂרָאֵל בְּקַנְאוֹ אֶת־קִנְאָתִי בְּתוֹכָם וְלֹא־כִלִּיתִי אֶת־בְּנֵי־יִשְׂרָאֵל בְּקִנְאָתִי׃ לָכֵן אֱמֹר הִנְנִי נֹתֵן לוֹ אֶת־בְּרִיתִי שָׁלוֹם׃ וְהָיְתָה לּוֹ וּלְזַרְעוֹ אַחֲרָיו בְּרִית כְּהֻנַּת עוֹלָם תַּחַת אֲשֶׁר קִנֵּא לֵאלֹהָיו וַיְכַפֵּר עַל־בְּנֵי יִשְׂרָאֵל׃ וְשֵׁם אִישׁ יִשְׂרָאֵל הַמֻּכֶּה אֲשֶׁר הֻכָּה אֶת־הַמִּדְיָנִית זִמְרִי בֶּן־סָלוּא נְשִׂיא בֵית־אָב לַשִּׁמְעֹנִי׃ ושֵׁם הָאִשָּׁה הַמֻּכָּה הַמִּדְיָנִית כזְבִּי בַת־צוּר רֹאשׁ אֻמּוֹת בֵּית־אָב בְּמִדְיָן הוּא׃
The LORD spoke to Moses, saying,:
“Phinehas, son of Eleazar son of Aaron the priest, has turned back My wrath from the Israelites by displaying among them his passion for Me, so that I did not wipe out the Israelite people in My passion. Say, therefore, ‘I grant him My pact of friendship. It shall be for him and his descendants after him a pact of priesthood for all time, because he took impassioned action for his God, thus making expiation for the Israelites.’”
The name of the Israelite who was killed, the one who was killed with the Midianite woman, was Zimri son of Salu, chieftain of a Simeonite ancestral house. The name of the Midianite woman who was killed was Cozbi daughter of Zur; he was the tribal head of an ancestral house in Midian.
David Martin (1639–1721), published in Amsterdam by Pieter Mortier I (1661–1711), Public domain, via Wikimedia Commons.
I described the actions of Pinchas as murder. There had been no trial, much less a sentence of execution, and Pinchas was acting outside of the law. This is also what some of the rabbis in the Talmud believed.
א"ר חסדא הבא לימלך אין מורין לו איתמר נמי אמר רבה בר בר חנה א"ר יוחנן הבא לימלך אין מורין לו ולא עוד אלא שאם פירש זמרי והרגו פנחס נהרג עליו נהפך זמרי והרגו לפנחס אין נהרג עליו שהרי רודף הוא
Rav Chisda says: Concerning one who comes to consult with the court when he sees a Jewish man engaging in intercourse with a gentile woman, the court does not instruct him that it is permitted to kill the transgressor. It was also stated that Rabba bar bar Chana says in the name of Rabbi Yochanan: Concerning one who comes to consult with the court, the court does not instruct him that it is permitted to kill the Jewish man engaging in intercourse with a gentile woman.
Moreover, if Zimri had separated himself from the woman and only then Pinchas killed him, Pinchas would have been executed for killing him, because it is permitted for zealots to kill only while the transgressor is engaged in the act of intercourse. Furthermore, if Zimri would have turned and killed Pinchas in self-defense, he would not have been executed for killing him, as Pinchas was a pursuer [who may be killed self-defense].
An even stronger condemnation of Pinchas is found in the Yerushalmi:
תַּנֵּי שֶׁלֹּא כִרְצוֹן חֲכָמִים. וּפִינְחָס שֶׁלֹּא כִרְצוֹן חֲכָמִים? אָמַר רִבִּי יוּדָה בַּר פָּזִי. בִּיקְשׁוּ לְנַדּוֹתוֹ אִילוּלֵי שֶׁקָּֽפְצָה עָלָיו רוּחַ הַקּוֹדֶשׁ וְאָֽמְרָה וְהָיְתָה לּוֹ וּלְזַרְעוֹ אַחֲרָיו בְּרִית כְּהֻנַּת עוֹלָם
It was stated: [Pinchas’ actions were] not with the agreement of the Sages . Would Pinchas act against the Sages? Rebbi Yudah bar Pazi said, they wanted to excommunicate him, had not the Holy Spirit jumped on him and declared that וְהָיְתָה לּוֹ וּלְזַרְעוֹ אַחֲרָיו בְּרִית כְּהֻנַּת עוֹלָם (Numbers 25:15) “an eternal covenant of priesthood shall be for him and his descendants after him.”
Pinchas was only spared a punishment for his murder because of divine intervention.
Pinchas in Psalm 106
The story is also told in Psalm 106.
תהילים קו, 28-30
וַיִּצָּמְדוּ לְבַעַל פְּעוֹר וַיֹּאכְלוּ זִבְחֵי מֵתִים׃ וַיַּכְעִיסוּ בְּמַעַלְלֵיהֶם וַתִּפְרץ־בָּם מַגֵּפָה׃ וַיַּעֲמֹד פִּינְחָס וַיְפַלֵּל וַתֵּעָצַר הַמַּגֵּפָה׃
They attached themselves to Baal Peor, ate sacrifices offered to the dead. They provoked anger by their deeds, and a plague broke out among them. Pinchas stepped forth and intervened, and the plague ceased.
In this version of the story, there is no mention of a Midianite woman, and no detail as to how Pinchas intervened. Sensing the need to justify this extra-judicial killing, some of the commentaries imagined that Pinchas undertook some kind of legal process:
אבן עזרא תהילים 106: 30
ויעמד, ויפלל - עשה דין, כמו עון פלילי
And he intervened: He considered the legality…
מצודת ציון על תהילים ק״ו:ל׳:א׳
ויפלל. ענין דין ומשפט כמו ונתן בפלילים (שמות כא)
And he intervened: This concerned the law…
הלכה ואין מורין כן “This is the law, but do not tell anyone”
הלכה ואין מורין כן “This is the law, but do not tell anyone.” This phrase is used only a few times in the Talmud to indicate a very special set of laws. They are laws that are technically on the books, but are not to be approved as such or disseminated. They are “only for those in the know.” Although this specific phrase - הלכה ואין מורין כן - is not used to describe the actions of Pinchas, the Talmud’s approach to the legality of his extra-judicial killings is identical. That is what we read above in the Mishnah in Sanhedrin: “א"ר חסדא הבא לימלך אין מורין לו.” Maimonides makes this clear in his commentary on this Mishnah:
ואם ישאל לנו הקנאי אם יפגע בו אם לא ואפילו הוא בשעת מעשה אין מורין לו ואם פשט ידו והרגו אין עליו עונש וכמו כן אם התחזק הבועל בשעת המעשה והרג את הקנאי להציל נפשו ממנו אינו חייב מיתה לפי שהוא רודף אחריו להרגו והתורה לא גזרה הדין להרגו אלא על הדרך הנזכר
And he codified this in his Mishneh Torah:
רמב’ם משנה תורה הל׳ איסורי ביאה 12:5
כָּל הַבּוֹעֵל כּוּתִית בֵּין דֶּרֶךְ חַתְנוּת בֵּין דֶּרֶךְ זְנוּת אִם בְּעָלָהּ בְּפַרְהֶסְיָא וְהוּא שֶׁיִּבְעל לְעֵינֵי עֲשָׂרָה מִיִּשְׂרָאֵל אוֹ יֶתֶר אִם פָּגְעוּ בּוֹ קַנָּאִין וַהֲרָגוּהוּ הֲרֵי אֵלּוּ מְשֻׁבָּחִין וּזְרִיזִין [ו.] וְדָבָר זֶה הֲלָכָה לְמשֶׁה מִסִּינַי הוּא. רְאָיָה לְדָבָר זֶה מַעֲשֶׂה פִּינְחָס בְּזִמְרִי
Whenever a man has relations with a gentile woman in public, i.e., the relations are carried out in the presence of ten or more Jews, if a zealous person strikes him and kills him, he is considered praiseworthy and ardent. [This applies whether the relations were] in the context of marriage or licentious in nature. This matter is a halachah conveyed to Moshe at Sinai. Support for this can be derived from Pinchas' slaying of Zimri.
But, the Rambam writes, there are limits:
וְאֵין הַקַּנַּאי רַשַּׁאי לִפְגֹּעַ בָּהֶן אֶלָּא בִּשְׁעַת מַעֲשֶׂה כְּזִמְרִי שֶׁנֶּאֱמַר (במדבר כה ח) "וְאֶת הָאִשָּׁה אֶל קֳבָתָהּ". אֲבָל אִם פֵּרַשׁ אֵין הוֹרְגִין אוֹתוֹ. וְאִם הֲרָגוֹ נֶהֱרַג עָלָיו. וְאִם בָּא הַקַּנַּאי לִטּל רְשׁוּת מִבֵּית דִּין לְהָרְגוֹ אֵין מוֹרִין לוֹ וְאַף עַל פִּי שֶׁהוּא בִּשְׁעַת מַעֲשֶׂה. וְלֹא עוֹד אֶלָּא אִם בָּא הַקַּנַּאי לַהֲרֹג אֶת הַבּוֹעֵל וְנִשְׁמַט הַבּוֹעֵל וְהָרַג הַקַּנַּאי כְּדֵי לְהַצִּיל עַצְמוֹ מִיָּדוֹ אֵין הַבּוֹעֵל נֶהֱרַג עָלָיו. וְהַבָּא עַל בַּת גֵּר תּוֹשָׁב אֵין הַקַּנָּאִין פּוֹגְעִים בּוֹ אֲבָל מַכִּין אוֹתוֹ מַכַּת מַרְדּוּת
The zealous person can strike [the fornicators] only at the time of relations, as was the case with regard to Zimri, as [Numbers 25:8] states: "[He pierced] the woman into her stomach." If, however, [the transgressor] withdraws, he should not be slain. Indeed, if [the zealous person] slays him, he may be executed [as a murderer].
If the zealous person comes to ask permission from the court to slay him, they do not instruct him [to], even if this takes place at the time [of relations]. Not only that, if the zealous person comes to kill the transgressor and he withdraws and kills the zealous person in order to save himself, the transgressor is not executed for killing him.
“‘it may be right to do and privately recommend, under certain circumstances, what it would not be right to advocate openly’.”
SIDGWICK on esoteric morality
We can shed some new light on the rabbinic principle of הלכה ואין מורין כן and the actions of Rav as described on this page of Talmud from the work of the philosopher Henry Sidgwick (1838-1900). In his book The Methods of Ethics he divided society into two: there were “enlightened utilitarians” who can understand the subtleties of the law and when it may allow for exceptions, and there were the rest, for whom “such sophisticated rules would be dangerous.”
. . . on Utilitarian principles, it may be right to do and privately recommend, under certain circumstances, what it would not be right to advocate openly; it may be right to teach openly to one set of persons what it would be wrong to teach to others; it may be conceivably right to do, if it can be done with comparative secrecy, what it would be wrong to do in the face of the world; and even, if perfect secrecy can be reasonably expected, what it would be wrong to recommend by private advice and example.’
As Katarzyna de Lazari-Radek and Peter Singer explain in their fascinating 2010 paper Secrecy on Consequentialism: a Defence of Esoteric Morality, Sidgwick here is endorsing what has come to be known as esoteric morality. They outline some of its important features:
There are acts which are right only if no one – or virtually no one – will get to know about them. The rightness of an act, in other words, may depend on its secrecy. This can have implications for how often, and in what circumstances, such an act may be done.
Some people know better, or can learn better, than others what it is right to do in certain circumstances.
There are at least two different sets of instruction, or moral codes, suitable for the different categories of people. This raises the question whether there are also different standards by which we should judge what people do.
Though the consequentialist believes that acts are right only if they have consequences at least as good as anything else the agent could have done, the consequentialist may need to discourage others from embracing consequentialism.
Paradoxically, it may be the case that philosophers who support esoteric morality should not do so openly, because as Sidgwick said: ‘it seems expedient that the doctrine that esoteric morality is expedient should itself be kept esoteric’.
de Lazari-Radek and Singer provide a number of examples which, they claim, “help us to see what [Sidgwick] means and why he is right.” Here is one, to explain Sidgwick’s claim that “it may be conceivably right to do, if it can be done with comparative secrecy, what it would be wrong to do in the face of the world.”
A soldier is brought before a general, charged with desertion in battle, for which the mandatory penalty is a long term of imprisonment. The soldier admits that he did desert, but begs for pardon, saying that he does not want his two small children to grow up without a father. Only one or two other people, who the general feels he can trust, know that the soldier deserted. The general assigns the soldier to duties behind the front line, telling him he must never say a word to anyone about deserting, or being charged with desertion. He tells his administrative officers to destroy all records of the charge and forget all about it.
Assume that if it were to become generally known that the fathers of small children may desert with impunity, this would materially hinder the ability of the army to fight, and that this would have bad consequences. Therefore it would have been wrong for the general to allow all the world to know of his decision regarding the deserter. It may still have been right for him to make that decision. Two children will have their father at home, the soldier and his wife will have a much better life, and the army’s fighting ability will suffer no material harm.
Consequentialism is a moral theory that believes that it is the consequences of conduct that determine whether that conduct was right or wrong. For the consequentialist, like Sidgwick, the morally right action is the one that produces a good outcome. So the murder of Zimri and Cozbi was justifiable, even if it is in a sort legal grey area. And Rav was correct in teaching two versions of halakha depending on who was listening.
“Consequentialism generally accepts that it is desirable for a society that there is a publicly accepted set of rules or principles that people internalize and generally follow. Consequentialists can agree that it is important for people to be able to rely on the moral rules and to know that others will follow them – society will function better if there is a generally accepted set of rules than if there is not.
”
Why הלכה ואין מורין כן is (generally) a bad idea
There are of course objections to the notion of an esoteric morality, or what we call הלכה ואין מורין כן. The moral philosopher Bernard Gert (1924-2011) for example, wrote that “hardly anyone denies that morality must be such that a person who adopts it must also propose its adoption by everyone.” And Thomas Scanlon believed that “ ‘thinking about right and wrong is, at the most basic level, thinking about what could be justified to others on grounds that they, if appropriately motivated, could not reasonably reject.” de Lazari-Radek and Singer address these and other challenges, and give several examples of where they believe esoteric morality (הלכה ואין מורין כן) is justifiable. However, they most certainly agree that there are good reasons why consequentialists should share in the broad support for transparency in ethics, and in most circumstances, esoteric morality should be avoided. They list five:
a. The benefits of a shared code
It is plausible to hold that if a society is to work well, it needs to have a shared moral code that its members can internalize, follow and expect others to follow. Many studies indicate that trust is an important factor in ensuring social welfare.
b. The benefits of open discussion
Transparency permits open discussion and criticism of rules and policies that are being considered for implementation. To accept a morality that is only for the elite implies that we are permitted to manipulate those who are not part of the elite, in order to produce the best consequences. When we do so, we are unable to seek the opinions of those who we are manipulating on the policies we are actually implementing…. We imagine the white colonial administrators sitting around in their cane arm-chairs under the ceiling fans, discussing how best to rule the natives. They may discuss their policies among themselves, and with the imperial government back home, but not with those who are most directly affected by them, the natives themselves. Under these circumstances they will have a tendency to convince themselves that what is in the best interests of the imperial power is the right thing to do. The danger is great that it will all go wrong because of the absence of exchange of ideas that could have happened if the policies had been transparent.
c. The dangers of elitism
Even if the lack of transparency does not lead to evils in any way comparable to those of oppressive colonial regimes, there are good grounds for objecting to dividing society into an elite and the masses. Whether it is nobles over peasants, whites over blacks, capitalists over workers, bolsheviks over the masses, or men over women, we know that those who are part of the elite will feel superior and have no difficulty in justifying, in their own terms, giving themselves privileges that in no way benefit – and often grievously harm – those they consider beneath them.
d. The public nature of education
We must also remember that morality is, at least in part, a social institution that exists only because each generation of children is educated to accept it. Since education is a public process, this cannot be education in an esoteric morality, at least not unless the children of a special elite were to be educated in secret, which would have the undesirable implications just mentioned. So a large part of morality must consist of rules or principles that are known by everyone, including teachers and children….
When we deceive people about the reasons why they should act in a certain way, we make it impossible for them to develop their critical capacities, at least in respect of those reasons for action about which they are being deceived. The ideal kind of political entity, we may well think, is one in which all citizens are capable of deliberating on the reasons for acting and for adopting particular policies. If they are unaware of the true reasons for the principles and policies they are following, they will not learn these habits of deliberating, or will not learn them well.
e. Respecting Preferences
Suppose that we prefer that our friends always give us their honest opinion about our work, never sparing our feelings, but they fear that if they tell the truth, we may become discouraged, so occasionally they are dishonest. We never find out about this. Nevertheless, our preference that they be honest with us has not been satisfied. On a preference utilitarian view, the fact that this preference was not satisfied means that our lives went less well, other things being equal, than they would have if our friends had told the truth.
How do we feel about Rav’s decision to change his ruling for different audiences? What about the actions of Pinchas, and, perhaps even more importantly, about the very idea of הלכה ואין מורין כן? Does it may you a little uncomfortable? According to de Lazari-Radek and Singer, it should. That is the whole point of an esoteric morality; in public, it should be disavowed.
Given that, it is not surprising that the idea of esoteric morality should meet with resistance, for to resist it is to publicly disavow it. To defend this position in public is therefore to be involved in a paradox. Most of you reading this may be philosophers, but you are also members of the public, and your resistance is therefore, the ‘right’ response, in the sense that it is good that you should have that response. You should be reluctant to embrace esoteric morality, and you should feel strongly that there is something wrong with our conclusion [that an esoteric morality, or הלכה ואין מורין כן is sometimes morally justifiable]. Nevertheless, sometimes we are right to do in secret what it would be wrong to do, or to advocate, in public.
“Consequentialism = whether an act is morally right depends only on consequences (as opposed to the circumstances or the intrinsic nature of the act or anything that happens before the act).”
