Nazir 20 - 26
Innocent Acts and Guilty Intentions
If a woman made a vow to be a nezirah and, unaware that her husband cancelled her vow, drank wine or came into contact with the dead, she is not punished by lashes for violating the Torah command prohibiting a nazir from indulging in these activities. Even though her intention was to violate Torah law, for she assumed she was a nezirah, the fact is that her husband's cancellation rendered her actions free of sin.
There is no doubt, however, that her intention to do wrong is sinful. This is why the Torah states (Bamidbar 30:13) "her husband cancelled them (her vows) and Hashem will forgive her," to teach us that she must atone for her actions in order to gain forgiveness. When Rabbi Akiva reached this passage, he wept as he exclaimed: "If someone who intended to eat swine flesh and ended up eating the kosher meat of a lamb requires atonement and forgiveness, how much more so one who intended to eat swine flesh and ended up doing so!"
Rabbi Yehuda goes one step further: Such a woman may not be liable for lashes by Torah law, because she was in fact not a nezirah, but she is liable for makkat mardut, the lashes given for violating rabbinic law, because of her intention to sin. How many lashes are given under this category?
Tosefot (Nazir 20b) cites the gemara (Mesechta Makkot 22a) that although the Torah legislated a maximum of 39 lashes for the violation of a Torah law, there is no such limit for makkat mardut, whose literal translation is "lashes for rebellion." A Jew who refuses to perform a positive mitzvah like eating matza or sitting in a succah is given lashes until his rebellion is subdued and he consents to perform the mitzvah.
But, points out Tosefot, this lack of a limit upon the number of lashes may apply only to situations in which those blows are used as a way of inducing him to perform a mitzvah against which he has shown rebellion. In the case of the nezirah with evil intentions, she is being punished for something she has already done. Since these lashes are punishment of the past rather than coercion for the future, concludes Tosefot, it may very well be that the number of these rabbinically mandated lashes should not be more than those mandated by the Torah for violation of Torah law.
- Nazir 23a
A "Sin" for Heaven's Sake
A sin committed for the sake of Heaven is equal to a mitzvah performed with an ulterior motive. This equation is made by Rabbi Nachman bar Yitzchak on the basis of a passage (Shoftim 5:24) comparing Yael -- the woman who ended the Canaanite threat to Eretz Yisrael by slaying their general -- to the Matriarchs. Although she utilized forbidden relations to weaken him and accomplish her mission, this action performed for Heaven's sake to save her people is granted credit equal to that of the Matriarchs, whose mitzvah relationships with the Patriarchs had an element of an ulterior motive of personal pleasure.
Why did a married Jewess like Yael not allow herself to be slain rather than submit to the heathen Sisra, since adulterous relations require martyrdom? Tosefot here answers this question in the same manner that the gemara (Mesechta Sanhedrin 74b) explains why Esther did not sacrifice her life rather than submit to Achashverosh: Since the woman is the passive partner in such a forbidden relationship, martyrdom is not expected of her.
In Sanhedrin Tosefot takes a radically different approach. From the account of Yael's incident with Sisra in Sefer Shoftim, it appears that she was not at all coerced into relations as was Esther. Sisra was fleeing for his life after the destruction of his forces and hardly had time for such things. On the contrary, Tosefot adds, he only asked her to hide him from his pursuers, and it was she who took the initiative of seducing him in order to weaken him.
Tosefot does not say, however, why it was permissible for Yael to do what she did. The answer may be the same as the one given by Rabbi Yechezkel Landau (Responsa of Noda Biyehuda, Vol. II Yoreh Deah 161) for Esther taking the initiative in going to Achashverosh for relations upon Mordechai's command. Her justification was the rescue of the entire Jewish nation, and Yael's case can be seen as comparable.
- Nazir 23b