The rabbi of Ofra, a settlement on the west bank, says that work on constructing nine homes there should proceed even on Shabbat. The ruling, by Rabbi Avi Gisser, is meant to make moot an anticipated decision on the part of Israel’s High Court of Justice halting the construction. Gisser hopes the homes can be finished and occupied before that ruling is handed down.

He issued his decision after several Israeli human rights organizations, acting on behalf of Palestinians from a nearby village, sought an injunction, alleging that the homes are being built on land owned by the villagers.

The ruling does not mean that Jewish laborers can build the homes on Shabbat. In fact, the homes are being built by Palestinian and foreign workers. In the eyes of Jewish law, however, that is irrelevant. Halacha forbids asking non-Jews to perform work on Shabbat that Jews themselves are forbidden to do. For that reason, no work was done on the homes on Shabbat until Gisser’s ruling.

The rabbi claims to be on solid halachic ground, but he actually is on a very slippery slope, as other Orthodox rabbinic authorities in Israel were quick to point out. The law of unintended consequences is very much in play here.

All of this, of course, requires explanation.

First, there is the need to clarify the concept commonly known as "the Shabbes goy." Most people believe that it is permissible to ask a non-Jew to do work on Shabbat that a Jew is forbidden to do. Not so; except in several very clear-cut and narrowly defined instances, one may not make such a request of a non-Jew.

What matters regarding possible exceptions is whether the prohibition is Torah-based (in which case necessary exceptions may be hard to come by) or is a rabbinic enactment (which makes creating exceptions easier). Truth be told, the prohibition is Torah-based; see Exodus ‘0:10. This is even acknowledged in some early rabbinic texts, such as the Mekhilta d’Rabbi Yishmael in his commentary to Exodus 1’:17: "[N]either you nor your fellow-Jew shall do any work, nor shall the non-Jew do your work…."

The sages of blessed memory, however, chose not to read the Torah text that way. The overwhelming majority insisted that the prohibition is rabbinic in origin. By so ruling, they were empowered to create exceptions when necessary (for which generations of Jews should be thankful). A case in point is the exception Gisser relied on in his decision:

"'[E]ven on Shabbat we write a contract for [a non-Jew] selling it [a piece of property in the Land of Israel] to a Jew.’ [An objection is raised. ‘Are you saying that this may be done] on Shabbat [when conducting business or writing are forbidden]?’ [Comes the answer:] ‘It is as Raba said, "He tells an idolater to do it." Here, too, then, [in the case of purchasing land inside Israel] he tells an idolater [to draw up and execute the contract of sale] and he does it. And even though to ask [such a thing of a non-Jew] is a sh’vut [a rabbinic Shabbat prohibition], for the purpose of settling the Land of Israel, our Rabbis did not apply it [the sh’vut].’" (See the Babylonian Talmud tractate Gittin 8b; also BT Bava Kamma 80b.)

Put another way, asking a non-Jew to do work on Shabbat violates a rabbinic prohibition; settling the Land of Israel is a Torah-based commandment. Torah-based commandments trump rabbinic prohibitions.

The Shulchan Aruch, the authoritative code of Jewish law written by Rabbi Joseph Karo, a Sephardi, goes so far as to state that a Jew himself can write and execute such a deed on Shabbat. In this case, Rabbi Moses Isserles, the Ashkenazic authority who often takes issue with Rabbi Karo in the Shulchan Aruch, agrees with this decision. He also explains it by saying that writing on Shabbat is prohibited by the Torah only if the writing is in Hebrew (see further on for an explanation). The prohibition against writing in other languages on Shabbat is merely a sh’vut and since the contract of sale would be written in a foreign language, the Torah-based commandment to settle the land trumps the rabbinic ban on writing on Shabbat. (See Shulchan Aruch, Orach Chaim, 306:11, including Isserles’ gloss. It must be noted that later authorities were scandalized by this ruling and insisted that it was a printer’s error. Rather, they say, writing by a non-Jew is what was meant.)

On this basis, Gisser would be on solid ground: Asking a non-Jew to do work on Shabbat violates only a rabbinic decree, while settling the land is a Torah-based commandment.

The logic is inescapable, but for one thing: The Torah clearly prohibits the building of "God’s house" on Shabbat (meaning the wilderness Tabernacle, or Mishkan). In fact, it is based on this prohibition that we derive the 39 categories of work that may not be done on Shabbat. Anything involved in constructing the Mishkan is considered forbidden work on Shabbat. (Writing was work needed for the construction project, but because that writing was in Hebrew, only writing in Hebrew is covered by Torah law; writing in other languages is a rabbinic fence around the biblical proscription.)

It follows that if construction on the Lord’s house is forbidden on Shabbat, then surely construction of homes for mere humans is forbidden on Shabbat, regardless of who is doing the building or why.

This is not the only problem with the decision, however. Gisser’s reliance on the "this trumps that" principle opens up possibilities he would never tolerate. One example should suffice. The principle that a Torah-based commandment trumps a rabbinic proscription is at the heart of the Conservative movement’s decision in the 1950s to allow driving to and from synagogue on Shabbat.

"[R]iding in an automobile on the Sabbath is at most a rabbinically interdicted activity. When [the prohibition of] this act prevents the fulfillment of the mitzvah of attending public worship, it shall not be considered a prohibited act. We base this conclusion upon numerous precedents in the halacha for the setting aside of a rabbinic prohibition when a great mitzvah is involved, such as the mitzvah of Yishuv Eretz Yisrael [settling the land of Israel]…." (See Morris Adler, Jacob Agus, and Theodore Friedman, "A Responsum on the Sabbath," Tradition and Change, pages 353-370; 1958.)

Gisser clearly does not agree with this responsum and he would not agree with many similar ones that use or will use the very same principle he espouses in his own decision. It is very hard, however, to put genies back into bottles.

Shammai Engelmayer is rabbi of the Conservative synagogue Temple Israel Community Center in Cliffside Park and an instructor in the UJA-Federation-sponsored Florence Melton Adult Mini-School of the Hebrew University. He is the editor of Judaism: A Journal of Jewish Life and Thought.