The Moral Quandary of Lulav Ha-Gazul

Offering a Sacrifice from Stolen Funds

If a religious act is made possible through deceit, is it nevertheless valid? Or does a moral blemish have the power to ruin a ritual action?^[1] For example, if a person brings a sacrifice that has been bought with stolen funds, or confiscated due to abuse of government power, to the Temple – may it be offered on the altar? Intuitively, it feels as if the answer should be no, and this is indeed one of the answers offered by the Talmudic sages. Nevertheless, as we will see, some sages take a more moderate position, seeing fit to take the sting out of an uncompromising moral requirement.

The prophets, who dealt with similar problems, tend to a rather strict moral position. Amos (2:7) rebukes the people who “lie down next to the altar on garments that their debtors have given as security, and drink wine that they have bought with money obtained from [unjust] fines.” ^[2] In Isaiah 61:8, the prophet declares “For I, the Lord, love justice, I hate robbery with a burnt offering”.^[3] Similarly, Malachi (1:13) rebukes the priests: “…you have brought stolen, lame, and sick animals…”^[4] The severity of their comments is not surprising; prophetic zeal leaves little room for compromises.

Malachi includes “stolen” alongside physical blemishes. This is significant since the Torah (Leviticus 22:17-25), in enumerating invalid sacrifices, deals only with physically blemished animals, and says nothing about stolen animals.^[5] In other words, Malachi’s category of stolen animals is new. Moreover, it is a derivative category. The Torah only includes rules about physical blemishes, and Malachi extends this rule to apply to ethical blemishes as well. The question of whether Malachi’s position is authoritative, whether an ethical blemish is the halachic equivalent of physical blemishes, becomes a matter of debate among the Talmudic sages.

The Case of the Stolen Lulav

The Mishna and its Supporters

Let’s take the classic case, very popular in yeshiva circles, where religion and morality meet: the case of the stolen lulav (lulav ha-gazul). The word gazul in rabbinic Hebrew does not mean precisely ‘stolen’ but rather anything that was taken away by force or obtained via exploiting of power relations.^[6] The Mishna (Sukkah 3:1) rules unambiguously that “a stolenlulav, and a dried-out one, are invalid.”^[7] In its laconic style, the Mishna presents the two types of blemish side by side – the physical one (“dried out”), and the moral one (“stolen”) – and evaluates them as equally serious. The Mishna thus appears to side with Malachi’s position on sacrificial animals.

Some Aggadic midrashim (such as Leviticus Rabba “Emor” §30) as well as various Aggadic statements cited in the two Talmuds, quote the verse from Malachi to support the Mishna’s clear-cut condemnation of the stolen lulav. Many of these add a homiletical message: “The defense attorney ends up as the prosecutor.”^[8] In other words, the lulav, which is intended to appease God, instead becomes a reminder of sin, because it was obtained by force. Many of these sources also mention the general category of “a mitzvah that comes about through a sinful act.”^[9]

The halachic midrashim (e.g. Sifra “Emor” 12:2) bolster the prohibition by finding a basis for it in the Torah through midrash.

“ולקחתם לכם ביום הראשון… לכם – משלכם, ולא את הגזול”.

Scripture says: “You must take for yourselves on the first day…” – “for yourselves” [lachem] means that it must belong to you, and not be stolen.”

By finding a basis in Torah law for this principle, the midrash transforms the principle of not benefitting from stolen property from merely a moral imperative rooted in the Prophets, into a “real” halachic prohibition from the Torah. And indeed, the passage dealing with this prohibition in the Jerusalem Talmud (Sukkah 3:1, 53c) quotes this midrash as well as the principle of the defender becoming the prosecutor.^[10] Thus, for the Jerusalem Talmud, it seems clear that the stolen lulav is always invalid.

This position also appears in the Babylonian Talmud, quoted in the name of two sages fromEretz-Yisrael; this seems to have been the unanimous position of all sages in Eretz Yisrael, based on the position of the exemplary R. Shimon b. Yochai:

אמר רבי יוחנן משום רבי שמעון בן יוחי: משום דהוה ליה מצוה הבאה בעבירה. אתמר נמי, אמר רבי אמי: יבש פסול מפני שאין הדר, גזול פסול משום דהוה ליה מצוה הבאה בעבירה.

Rabbi Yochanan said in the name of Rabbi Shimon bar Yochai: “[The reason a stolen lulav is invalid] is because it is a commandment fulfilled through a transgression.” This was also stated by Rabbi Ammi, who said: “A dry [lulav] is invalid because it isn’t beautiful; a stolen [lulav] is invalid because it is a commandment fulfilled through a transgression.”

From all of the above we see a trend to treat the stolen lulav as halachically invalid, since it is a mitzvah born of transgression.

Shmuel and the Babylonian Talmud

Alongside the positions of R. Yochanan and R. Ammi quoted above, the Babylonian Talmud (Sukkah 29b-31a) records the opinion of R. Isaac bar Nachmani in the name of Shmuel, one of the earliest Babylonian Amoraim, which takes a different track. The Babylonian position was thus from its earliest stages opposed to the one of Eretz-Yisrael:

ופליגא דרבי יצחק. דאמר רבי יצחק בר נחמני אמר שמואל: לא שנו אלא ביום טוב ראשון, אבל ביום טוב שני, מתוך שיוצא בשאול – יוצא נמי בגזול.

This position conflicts with the view of Rabbi Isaac (i.e. the Eretz Yisraeli position), for Rabbi Isaac Bar Nachmani said in the name of Shmuel: “This only applies to the first day of Yom Tov, but on the second day of Yom Tov, just like you can use a borrowed [lulav] you can also use a stolen one.”

Whereas R. Ammi declares a stolen lulav invalid in all situations, because it is a mitzvah born of transgression, Shmuel says that it is invalid only on the first day of Sukkot. The reasoning comes from a midrashic deduction; the verse that mentions the words “for yourselves” says: “You shall take for yourselves on the first day.”^[11]

According to this view, the prohibition on using a stolen lulav is not based on the moral problem, but is identical to the prohibition on using a borrowed lulav. On the first day of the festival, everyone is obligated to wave a lulav that they own; stolen or borrowed lulavs are not something legally owned. The blemish is thus not moral but rather technical.

In the Babylonian Talmud, the matter is not presented as a simple or equal debate between two sides. Rather, the entire sugya is built primarily on Shmuel’s statement. The Babylonian Amoraim note the tension between Shmuel’s principle and the (Eretz-Yisraeli) problem of “a mitzvah born of transgression,” and suggest various ways of reconciling the two, but they do not reject Shmuel’s approach.^[12]

Shmuel’s principle does more than just contradict the strict approach; it actually turns it on its head. The halakhic midrash described above, which interpreted the word “lachem – from your own belongings” was intended to strengthen the moral prohibition. Nevertheless, in Shmuel’s hands, this midrash actually ends up weakening it, for it limits the prohibition to the first day of the festival!

All the impassioned declarations about the defense attorney becoming a prosecutor, and about the mitzvah born through transgression, are ignored or, at most, relegated to the realm of homily, thereby giving them only secondary importance in the actual halakhic ruling.

If we compare the question of the stolen lulav to that of the stolen sacrificial animal mentioned above, we find that the same two approaches found in the biblical texts make their appearance in the Rabbinic texts. Sources from Eretz-Yisrael take the prophetic approach, continuing Malachi, who places the stolen animal alongside the lame and sick in his list of blemishes. Shmuel (or the editor of the Babylonian sugya) takes the approach of the Torah, which excludes ethical stains from its list of disqualifying blemishes. According to this approach, moral defects do not have the ability to ruin a ritual act.

The Ravad’s Prophetic Voice

Considering the centrality of the Babylonian Talmud for halacha, it may come as no surprise that the vast majority of poskim follow Shmuel’s position. One authority in particular stands out as going against the grain. Rabbi Abraham ben David of Posquieres, the Ravad (1125-1198) was an older contemporary of Maimonides, and wrote glosses on his Mishneh Torahthat often express his (sometimes vehement) opposition to Maimonides ruling. The case of the stolen lulav is one example.

Maimonides quotes Shmuel’s position as authoritative (Mishneh Torah, “Laws of Shofar,Lulav, and Sukkah, 8:9):

כל אלו שאמרנו שהם פסולין מפני מומין שביארנו, או מפני גזל וגניבה–ביום טוב ראשון בלבד; אבל ביום טוב שני עם שאר הימים, הכול כשר

All these defects that we have discussed – various types of physical blemishes, in addition a lulav taken by force or stolen – make it invalid only on the first day of Yom Tov; but on the second day, and all subsequent days, they are acceptable.

Ravad responds to the decision, probably calling attention to the tradition from the Palestinian sources.

אין הכל מודים בגזול ויבש שאין פסולין משום הדר אלא גזול הוה ליה מצוה הבאה בעבירה, יבש מפני שהוא כמת.

Not everyone accepts this [first day but not second-day principle] when it comes to stolen or dried lulavim, for they are not invalid due to lack of beauty. Rather, stolen ones are invalid because using them would be a mitzvah born of transgression, and dried ones because they are like the dead [who cannot praise God].

Ravad here follows (perhaps unknowingly) the Eretz-Yisraeli tradition, and assumes that the ethical principle is a valid legal principle, despite the Babylonian tradition to the contrary. Nonetheless, nearly all the other commentaries on the Talmud and halakhic decisors, whether medieval or modern, have followed the distinction made by Shmuel in the Babylonian Talmud.^[13]

The Eretz Yisraeli Talmud: Greater Sensitivity or Relative Simplicity?

The Eretz-Yisraeli Talmud’s attitude stands in conformity with the Mishnah and with the established Eretz-Yisraeli authorities: a stolen lulav is always invalid—period. This thinking also shows affinity with aggadic traditions and ultimately with prophetic traditions from the Bible. The Bavli, in contrast, finds a way to bypass this simple dictum.

Note that the Bavli does not reject the rule of lulav ha-gazul but rather only limits it. But the Bavli’s sophisticated technique to limit the rule, in fact, annuls the moral element in it. According to the Bavli, a stolen lulav is invalid not because it is morally wrong, but because of some other technical blemish. How can we understand the difference between the Babylonian and Eretz-Yisraeli approaches?

It is often said that the Babylonian Talmud, evolving at a later period that the Eretz-YisraeliTalmud and benefitting from a more developed mode of legal reasoning, is prone to overlook the original intentions of laws, employing instead more complex laws, giving place to additional conflicting interests. Such a procedure took place here. Yet it is hard to deny that the simple ruling of the Eretz-Yisraeli Talmud more clearly expresses the moral instinct, which initiated this law to begin with.

The Merits and Discontents of Judging According to the Torah

The “radical” possibility that the Eretz-Yisraeli Talmud is more moralistic may actually be less radical than it appears. R. Yochanan, the originator of the statement about “a mitzvahborn of transgression,” said elsewhere: “Why was Jerusalem destroyed? Because they judged according to the law of the Torah” (b. Bava Metzi‘a 30b, manuscript versions).^[14] The Talmud understands his statement to mean that they sufficed merely with the law of the Torah, and did not judge lifnim mi-shurat ha-din, with a sense of kindness and compassion that goes beyond the letter of the law.

To think about the realities of our case, “stolen lulav” refers not only to the obvious case of alulav forcibly taken from someone’s hands, but also – maybe even primarily – to a lulav that the seller has acquired as a result of improper financial interactions, or obtained it by force from a weak or subject farmer. Perhaps a fair price has not been paid to the workers or owners, or it has been harvested from private property (or even public property!) without permission, or the children that sell it in the street have not been treated properly. It is useful to have Shmuel’s position as a backup in case a situation requires leniency, but overall I imagine most of us would be morally uncomfortable supporting these kinds of practices and would feel that our religious act of taking the lulav and etrog was somehow wanting.

The point here is that insistence merely on “the law of the Torah” does not really fulfill the Torah’s own requirement (Deut. 6:18) to do what is right and good in the Lord’s eyes: “ועשית הישר והטוב”. In this sense, the prophetic tradition, the tradition of Ravad and the Palestinian sages, fulfills the spirit of the Torah more than adherence to the letter of the law does. Despite the disagreement on what the letter of the law is, all authorities will surely recognize that following the ethics expressed in the prophets is the better course.