MARK WASHOVSKY

(=sauce) Rambam saves the man from violating the"weightier” Toraitic prohibition against cohabitation with Gentiles(=forbidden fat).®! It is also true that, in their well-known taqanat hashavim, the tannaitic sages pursued this"lesser of two evils" line by allowing a thief in certain cases to make monetary restitution rather than forcing him to meet the Toraitic requirement that he restore the actual stolen property.’ This serves him as an implied kal vahomer: if the law of the Torah may be set aside in order to encourage repentance, such is certainly the case with the rabbinic prohibition against this marriage. The problem, as Rambam himself remarks concerning the Torah ’s indulgence of the evil impulse on the issue of yefat to’ar, is that this reasoning has no objective weight in Jewish law. The approach embodied in the taganat hashavim was indeed utilized occasionally in the past and Rambam may deem it appropriate here,®® but it has never been condoned as routine procedure. If the rabbis overruled a legal standard in this specific instance, they did not do so in other instances where the law was just as likely to be violated.>* Some authorities have even criticized the"sauce rather than fat" argument as a dangerous notion, since if followed to its logical extreme it would sanction the annulment of any and all mitzvot in situations where lawless individuals threaten to violate them.”

The citation of"time to act for the Lord", while dramatic, raises similar difficulties. On its face, the principle allows the rabbinic authorities to ignore a specific halakhic standard in order to avert a calamity to the halakhic system as a whole. Yet how does one determine precisely that this is such a time to act? That determination, like the determination to employ taqanat hashavim, is inescapably subjective, so that two authorities confronting an identical situation might well draw diametrically opposite conclusions as to the proper course to take. Consider the decision of R. Shelomo b. Adret(Rashba, d. 1310) on virtually the same question as that which faces Rambam here.** A man buys a Gentile maidservant, cohabits with her, converts her to Judaism

8