Contrary to common belief - halacha prescribes punishment - even capital punishment based on circumstantial evidence and presumption (chazaka). Even strong rumors are enough to give punishment
Kiddushin (80a): This was taught only in
respect of Sanctities of the border, but not in respect of genealogy. But R.
Johanan maintained: Even in respect of genealogy. Now, R. Johanan is in accord
with his view [elsewhere]. For R. Hiyya b. Abba said in R. Johanan's name: We
flagellate on the strength of presumption, we stone and burn on the strength of
presumption, but we do not burn terumah on the strength of presumption. We
flagellate on the strength of presumption, as Rab Judah. For Rab Judah said: If
a woman was presumed a niddah by her neighbours, her husband is flagellated on
her account as a niddah. We stone and burn on the strength of presumption, as
Rabbah son of R. Huna. For Rabbah son of R. Huna said: If a man, woman, boy and
girl lived in a house [together], they are stoned and burnt on each other's
account.6 R. Simeon b. Pazzi said in R. Joshua b. Levi's name on Bar Kappara's
authority: It once happened that a woman came to Jerusalem carrying an infant
on her back; she brought him up and he had intercourse with her, whereupon they
were brought before Beth din and stoned. Not because he was definitely her son,
but because he clung to her.
שולחן ערוך (אבן העזר יט:א): מי שהוחזק בשאר בשר, דנין על פי חזקה זו אף על פי שאין
שם ראיה ברורה שזה קרוב, ומלקין וחונקין וסוקלין על חזקה זו.
Aruch HaShulchan (C.M. 2:1): Even
though the Jewish court does not judge cases involving capital punishment or
flogging or fines outside of Israel – but if the beis din sees that the times
require it - because there is a breakdown in law and order – then it is
permitted. Everything depends on the judgment of how serious the problem is.
Not only can the court judge these cases when there is community lawlessness
but even when a single individual sins it is permitted to punish him if they
think it is necessary - as long as they do it for pure motivation. This
ability to judge these cases in emergency situations is even when there are not
valid witnesses but only a reasonable basis that it is true and constant rumors
are heard when there are no enemies who would create them
(Rambam (Hilchos
Sanhedrin 24:5): A beis din – in all places and for all times - has the power to flog a person about whom
there are rumors of bad behavior and the people and complaining that he has
transgressed prohibited sexual relations. This is only when the rumors are unceasing
as we have explained and also that he doesn’t have any known enemies who would
slander him. ….
Yam shel Shlomo (Yevamos
10:20):… Similarly the beis din has the right to flog a person who has a
bad reputation and there are constant rumors that he is involved in improper
sexual relations. However this is only when he doesn’t have enemies that would spread
lies about him
Kiddushin (81a): Rav said that we flog a person because of an evil rumor
about him
Meiri(Kiddushin
81a): All those who act with inappropriate frivolity until people are
constantly complaining about him that he is a sinner is to be flogged based on
his activity which leads people to give him a bad reputation – even though no
one has given formal testimony that he has sinned… Whoever acts in a way that
causes rumors that he is a sinner has violated a negative commandment from
Tradition.
Do these punishments flow from the original power of beit din or from the power that seems to have devolved upon them once the kingship disappeared and with it the abiity of the king to maintain civil society?
ReplyDeleteKT
Joel Rich
don't know if there was a change - but the rational is clearly that beis din needs to maintain a functioning society and that Torah laws can be ignored - for as long as the dysfunction exists - if they are causing society to deteriorate.
DeleteShulhan Arukh CM 2:1
Delete1 Any Beis Din (1) [1], even one whose judges lack semicha attained in the Land of Israel [2], if it sees the nation wantonly sinning (2) [3] (and emergency measures are necessary) (Tur), it can punish with death, monetary measures [4] or other means of punishment, even in the absence (3) [5] of solid evidence [6]. If the accused is strong and violent, the court can call in non-Jews to beat him [7]. (The courts also have the power to divest people of their property [8], or destroy belongings, as the judges see fit as essential temporary measures to control the generation) (Tur in the name of the Rambam, Laws of Sanhedrin Chap. 24). All of their actions must be for the
sake of Heaven. Such powers, however, rest only with the greatest Torah authority of the generation, or with a city’s finest citizens [9] when the community appoints them over them as a court.
It would seem from here that they stem from the powers that developed later.
So in summary: we require evidence from witnesses unless we don't have any.
ReplyDelete"שולחן ערוך (אבן העזר יט:א): מי שהוחזק בשאר בשר, דנין על פי חזקה זו אף על פי שאין שם ראיה ברורה שזה קרוב, ומלקין וחונקין וסוקלין על חזקה זו."
ReplyDeleteציטוט זה אינו קשור לעניננו כלל. בנדון דהשו"ע לא ממיתין ע"פ חזקה, אלא קובעים תחילה את האיסור ע"פ חזקה, ולאחר שזה כבר נחשב איסור שמחייב מיתר, אזי ממיתין ע"פ עדים. וזה דומה למ"ש הרמב"ם שאע"פ שאין מלקין ע"פ ע"א אבל מ"מ האיסור עצמו בע"א יוחזק, ואח"כ מי שאוכל אותו איסור והיו שם ב' עדים, מלקין אותו.
והדברים פשוטים.
Even though presumption are allowed, they are limited.
ReplyDeleteFor Example. Derech noafim' is accepted proof, Yichud is not (except a sotah for its limited application).
'Derech aivorim' is not accepted as a presumption for intercourse (although in our days
certain activists refuse to accept this halachic limitation).
Witnesses that are not 100% accurate do not trigger capital punishment even though if
two people acted as married (with no witnesses to establish it as a fact) capital
punishment is triggered if adultery is proven at a later time.
So your right in some cases but not in most instances,
Please define "Derech Noafim" and "Derech Aivorim".
DeleteNot So Simple:
DeleteSource please? I believe you are dead wrong.
What is the source for the famous story regarding I believe the Rosh who allowed someone to mutilate the nose(?) of a woman who was acting as a prostitute. I believe its mentioned in the Beis Yosef.
ReplyDeleteAs far as death penalty is concerned for sexual transgressions, in a non-Emergency situation Shulchan Aruch requires:
ReplyDelete1. Prior warning by two eyewitnesses
2. The sinner, BEFORE sinning, to verbally acknowledge he was warned
3. Those same two eyewitnesses to witness the sex
Regarding point 3, there are certain requirements in S"A as far as how much or how closely the sex act has to be witnessed. Perhaps someone else can elaborate what those legal requirements are.
I'm sorry I seem to have missed that seif in the Shulhan Arukh. Would you kindly mind citing a source?
DeleteRDE: The headline of this post is at best misleading. The S"A does not pasken one can execute based upon presumption. Only based on an emergency situation. Any other conclusion is only being based a gemora the S"A doesn't pasken like (only an Aruch Hashulchan is quoted for it.)
ReplyDeleteDan.
ReplyDeleteBy asking that question you prove your ignorance.