Monday, August 12, 2013

Question about Rambam's view of murder

Guest Post by Eddie

There are some difficult passages in a Rambam I am studying, and I wish to ask if anyone has some knowledge of this material, and what the halacha is (or was).

The Rambam, in Hilchot Rotzeach, Ch4: 1, the Rambam argues that killing a person by mistake, if you intended to kill someone else, is exempt from punishment, as is throwing a stone (or bomb) into a crowd. Rambam Chapter 4              mechon-mamre.org/i/b504n.htm

 Here the Raavad points out this was a minority opinion of R' Shimon, and hence is not halacha. So this point is presumably not like the Rambam.

In Halacha 6 he writes: If ten people strike a person with ten different sticks and he dies, they are all not held liable for execution by the court. This law applies regardless of whether they struck him one after the other or they struck him at the same time .This is not disputed by Raavad, is it therefore halacha?

The problem is that this is not at all logical It means that, in a time when we have a Sanhedrin vested with capital punishment authority, murder becomes a very easy crime to commit - simply hire a gang of killers, and you are "patur".

One answer, or counter argument, might be the case of Pilegesh sh' b Giveah.  (Judges Ch. 19-20) where a gang of thugs attack a woman and kill her.  This leads to a war to wipe out the offenders, which ends up in 25,100 Benjamites being killed.  But Rambam might argue that this was a case of gang rape of a pilegesh, not of outright murder.

A further problematic halacha, 10, says that we can openly kill an apikorus, or even someone who brazenly commits an aveira. This can be done in public without need for Judge or Navi. 

What happens if someone decides to kill a woman who won't move on a bus, etc?

Furthermore, the Torah punishment of execution  only applies to certain sins. Where is the force of this halacha, with regards to sins that are not capital crimes, eg shatnez.   Can I kill someone for sowing kilayim in his farm?   The Chazon Ish has already stated that this particular halacha, or the continuation of it no longer applies , since today there are not wilful apikorsim. As far as I know, no Orthodox person has ever used this halacha to kill a reform, an atheist, a Bible critic etc, certainly not in the last 300 years.   The only exception might be Yigal Amir wrongfully shooting Rabin – but this was not because he was a heretic, but that  Rabin had been called a rodeif – which is another issue altogether.

The points I make are not suggesting any final psak halacha, and not attacking any Gedolim or Rishonim.  What I am trying to understand is the practical implications of these halachot, and whether they were ever (or will ever) be implemented?

24 comments :

  1. Re: murder being too easy to commit and get off without prosecution.

    I think this argument can be made in a great many places in the law. For example, it is enough for the murderer not to acknowledge the warning and then claim he misunderstood it.

    The fundamental axiom underlying all of the Talmudic jurisprudence is that there is a Judge and there is Justice. We cannot know with certainly all circumstances of the case, and Beis Din Shel Maala can - so we do not execute anyone where we are unsure is tottaly guilty. After all, if we let him go, Hashem will take care of this person. And if we choose to execute the innocent guy, it's a much trickier problem to solve...

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    1. the sanhedrin had mechanisms of dealing with people who were guilty but "got off on a technicality". they didn't just "let God take care of it".

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    2. What you say may well be true. But in the case where we have witnesses, and would execute a lone murderer, we set free a gang. We can even warn them and they would not need to misunderstand it - they can understand it. they still get off Scot free.

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    3. Generally we do assume that if the Raavad does not object to the Rambam he agrees. Definitely that would be the case here, as the Rambam is following the majority opinion of the sages in Sanhedrin 78a.

      In regard to your fundamental question, see Rambam Hilchos Sanhedrin 24:4 (and the rest of the Halachos in that Perek)where he states clearly (based on a Gemara in Kiddushin) that when need be, the Sanhedrin is empowered to administer capital punishment (or lashes, monetary fines, imprisonment etc.) even for crimes that would not intrinsically warrant the death sentence. For example, if a certain crime is becoming widespread then the offender may be killed by way of a deterrence policy.

      In regard to the crime of murder specifically, there is an explicit case where although the perpetrator is exempt from the official punishment due a technicality in regard to the testimony, a different punishment is mandated. See Hilchos Rotzeach 4:8-9. See also Hilchos Sanhedrin 18:4-5 for another example of the above punishment. It should be noted, however, that these cases are not examples of the extrajudicial license to Beis Din to mete out punishment as the situation requires, but rather fall under the category of Halacha LeMoshe MiSinai. They are nevertheless examples of where being free of the official punishment on a technicality does not necessarily equate with being "scot free".

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    4. Thank you Chaim.
      Do you know when these laws were actually in place - e.g. during period of Bayit sheni? Time of Neviim?

      Also, I am not sure your explanation applies to gang murder. The cases you bring apply to evidence or warnings that have not been "heard". Here, you can warn them but the Din is that they are exempt. Plus, the other rulings you bring from Hilchot Sanhedrin are Hora'at sha'ah. So maybe one particular sanhedrin might decide to take action, but in general they might not.
      There is also the story of the Egel Arufah, and how it fell into disuse or was abandoned in the days before the Hurban. The explanation given in Sotah (I think) is that murder had become widespread. This might be precisely because the bnei belial were making use of this type of loophole!

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    5. Eddie,

      The Halacha LeMoshe MiSinai of locking the perpetrator in a room etc. is presumably an extension of the Sanhedrin's function in administering the death penalty, and would therefore presumably be limited to when there was a Sanhedrin. This includes the time of the Neviim and most of the period of Bayis Sheni.

      But as you said, these laws are restricted to specific cases, and would not apply to your example of gang murder. A punishment in such a case would have to fall under the category of extrajudicial punishment, which is not actually predicated upon the right of Beis Din to enforce the official death penalty. Therefore, even courts which exist subsequent to the Bayis Sheni period do in principle have the right to mete out such punishments. In medieval times it was commonplace for the BD to administer lashes and fines to protect society from the inroads of evildoers (with the sanction of the gentile rulers), and in the eastern countries this practice continued until recently. I actually heard of a group of Yemenis who arrived late into town for Shabbos by horse (about 50yrs ago). The minors were fined and the men were lashed!

      Obviously, extrajudicial capital punishment has been more rare, but there have been instances.

      Of course, the very nature of these laws makes the question of whether to punish, as well as the severity of the punishment, up to the discretion of the judges - but that itself would indeed serve as a powerful disincentive to committing the types of heinous crimes you describe.

      Indeed, I think that there is a fundamental point which you may be overlooking. I would submit that the deterrent factor of extrajudicial punishment is much GREATER that that created by the normative laws which the Torah prescribes for capital punishment. As the MIshna in Makkos records, sentencing a person to death with these laws was very rare, because the parameters of the death sentence are so narrow. There are such restrictions on the witnesses who see the act, and the warning, and the warning being accepted, and the exact nature of the act itself, that killing someone in a way that avoids that penalty is very easy indeed. (One probably needs to be a learned Talmid Chacham to "do everything correctly"!)
      For example, Grama - causation - is exempt from earthly punishment according to the Torah. (See Sanhedrin for many examples of Grama.) Would there then be no deterrent to murdering with Grama?

      I therefore believe that the main deterrent to engaging in these sorts of crimes was the second function of the Beis Din, that of extrajudicial punishment. A potential murderer/rapist/Shabbos violator was always keenly aware that in reality he had a very realistic chance of suffering greatly, regardless of whether all the technical conditions for liablity had been fulfilled.

      The main factor in the prevalence of violent crime in any society is the general level of Yiras Shamayim. As Avraham Avinu said (Breishis 20:21), "I said: there is simply no fear of G-d in this place, so they might kill me on account of my wife."
      I would presume that it is this decline which is being described by the Mishna in Sota (and this would parallel the other aspects of Clal Yisrael's deterioration delineated in the Mishna), not a gradual realisation of how to "con the system" and commit rime without recompense.

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    6. So you are relying on the informal or extrajudicial system to mop up anything that falls out of bounds of the halachic system.

      Not sure, since Chazal effectively cancelled Onesh Mavet, at some stage. I therefore presume they were unable to compensate for this by extrajudicial punishments.
      Also, Yiras Shomayim is also not a convincing factor, in that some very violent groups called Biryonim (Zealots) and Sicari, who were shomer mitzvot but would also murder anyone they didnt agree with politically.

      This raises another problem, on what was actually going on during the late 2nd Temple era, as described in Sotah.

      Whereas, we are told that the Bitter waters ceremony was stopped because adultery was flourishing and Eglah Arufah also stopped because murder inc. was flourishing, elsewhere, we are told the opposite - that the level of shomer mitzvot was very high, but the only sin was sinnas chinnam. So how could murder and adultery be rife?

      And also Chaim, since you appear to be very knowledgeable about this subject - what happens if people take it upon themselves to execute "apikorsim"? It will become like Syria, where each militia calls the other apikorsim. Imagine what would happen if this were possible today, when a political party says that those who don't vote for them are sinners.

      In actual fact, this occured between Beis Hillel and Shammai, where beis Shammai put armed men outside Beis Hillel's yeshiva. According to some midrashim, this war led to 3,000 deaths. Ok, it doesn't match the record of Syria's war, but they didnt have tanks and katyushas in those days.

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    7. PART 1

      There is no area outside of the halachic system that needs to be "mopped up". The halachic system itself is comprised of 2 parts: (1) specific punishments for specific violations under particular conditions, (2) an extrajudicial mandate given over to the Torah sages of the Beis Din to administer on a case-to-case basis, with a view to promoting the betterment of society.

      I don't know what you mean about Yiras Shamayim not being a convincing factor, because people who kept most of the Torah engaged in murder when they wanted to. So what? No religious system can eliminate free will, not is it supposed to. The greatest men can and do sin, and our Biblicsl, Mishnaic and Talmudic history is replete with accounts of these failures. But none of this is relevant to the basic point that I was making, that the amount of G-dliness in a society is the single greatest factor of impact upon its morals. History - ancient, recent and present - convinces me of this beyond a doubt.
      You may disagree, but if you do so you would need to show that generally speaking, G-d-fearing individuals commit just as many evil acts as those who do not fear G-d. Providing an example, or a list of examples, of religious Jews committing heinous crimes is insufficient.
      Besides which, I never said, or implied, that merely obeying the body of laws of the Torah is enough to spiritually raise a society's level to prevent it from deteriorating to the levels described by the Mishna. I clearly pointed to "Yiras Shamayim" - true, internal fear of Hashem - as the decisive factor, and cited the words of Avraham Avinu to that effect. Show me that the Biryoni were men of Yir'as Shamayim. In fact, we know that these hotheads lacked a crucial aspect of Yiras Hashem - fear of and repect for Torah scholars, which is included in the commandment to fear Hashem (see Rabbi Akiva's statement in Kiddushin 57a). But Rabban Yochanan ben Zakai, the leading Torah scholar of his generation, was forced to hide himself in a coffin and play dead in order to escape the Biryoni. In fact, the Biryoni believed that they were the ones acting correctly, and would have killed RYBZ for "religious reasons". Nevertheless, however religious and self-righteous some people can seem, if they refuse to submit to the rulings and opinions of the great Torah scholars of their generation - they do not have Yiras Shamayim as defined by Hashem.

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    8. PART 2

      The question of whether murder and immorality were rife during the end of the 2nd Temple is an important one, about which I cannot go into much detail here. But as a basic answer to the contradiction which you raise, it seems clear that in comparison to the 1st Temple, these sins were not so common, and the Gemara in Yoma therefore assumes that they could not have been the cause of the destruction. The cause must therefore have been Sinas Chinam. But on the other hand, murder and adultery had crept in to levels which were intolerable according to Hashem's expectations of Am Yisrael, and this is the decline portrayed in Sota.

      The midrashim you cite about Beis Shammai killing 3000 Talmidim stunned me. I had never heard of it before, and it seems very strange. When I searched for it on the internet, I found an interesting article (link: http://aryehbderech.blogspot.co.uk/2013/06/did-beit-shammai-really-kill-beit.html) in which the author cites the opinion of the classical commentators on the Yerushalmi (Shabbos 1:4, where this story is told) that it is not to be taken literally. [There are a number of examples of non-literal statements of Chazal, especially in Midrashim.]

      You ask, what if people take it upon themselves to execute "apikorsim"? I don't know. What if? What's that got to do with the extrajudicial ability of the Beis Din to punish people in a legal setting?

      I began this correspondence with the understanding that you genuinely wanted to clarify some Halachic issues, and was glad to help (although I've never contributed to a blog before). Maybe that really is the case, but the tone of your penultimate and last paragraphs, as well as the implied comparison between our holy Tannaim and wicked muslims, give me cause to suspect that sadly, this is not so. I always like to know where the other person is coming from in a conversation. Discussing the meaning of a statement of Rashi, for example, is meaningless if one of the parties thinks that what Rashi says is irrelevant. What IS relevant as a prooftext for you?

      Please forgive me for probably having misjudged you. I have taken all your points seriously and have attempted to respond in kind - hence the long post - but your last remarks threw me off somewhat.

      Hatzlocho...

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    9. Recipients and PublicityAugust 13, 2013 at 12:17 PM

      Chaim @ August 13, 2013 at 5:45 AM said..."I began this correspondence with the understanding that you genuinely wanted to clarify some Halachic issues, and was glad to help (although I've never contributed to a blog before). Maybe that really is the case, but the tone of your penultimate and last paragraphs, as well as the implied comparison between our holy Tannaim and wicked muslims, give me cause to suspect that sadly, this is not so."


      Firstly, Yasher Koach, Chaim, and Shalom Aleichem!

      Sadly, this is the experience all the good-faith editors, on this blog have had with Eddie, from the owner of this blog to almost all other posters, so it is not just you. Just in this case Eddie has offered up his own "lomdisha" sugaring of his real objective, to attack and undermine Torah-true Yiddishkeit for his own reasons.

      A very useful question would be to ask Eddie when he states: "There are some difficult passages in a Rambam I am studying" -- where is Eddie "studying" and what do they teach over there and what are their goals and aims, as well as what is their hashkofa (if they even have one that's kosher) and ideology ???

      When Eddie states: "and not attacking any Gedolim or Rishonim" he is being totally disingenuous, deceptive and basically a liar, or he is so caught up in his schemes and crooked world view that he just cannot get passed his own blinding prejudices. Why he spends so much time on this blog, and how he can afford to so is one of the $64,000 questions that need to be answered!

      You are a 1,000% correct when you reply to Eddie that: "the tone of your penultimate and last paragraphs, as well as the implied comparison between our holy Tannaim and wicked muslims, give me cause to suspect that sadly, this is not so. I always like to know where the other person is coming from in a conversation. Discussing the meaning of a statement of Rashi, for example, is meaningless if one of the parties thinks that what Rashi says is irrelevant. What IS relevant as a prooftext for you?" !!

      Otherwise, Chaim thank you so much for your willingness to to come on board and your comments were really appreciated. You are real mentsch, it is noticeable and evident from your words and tone and good middos!

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    10. Thank you RaP,

      Having now seen the Yerushalmi inside, where there is no mention at all about the number of people killed (even if it would be taken literally), it becomes obvious that the "midrashim" recording 3000 Talmidim being killed is an entire fabrication. It could simply have been 3 or 4. The question about murder is still there (although some solutions seem to present themselves...), but this highlights the need to always look up the sources.

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    11. yesh din vesh dien should also make us equally unconcerned about an accidental conviction to an innocent because hashem is obviously allowing him to be killed!!

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    12. eddie i believe the only things that were dealt with extra judicially were problems that presented a real danger to the public i.e. setting murders rapists or kidnappers free this was done to allow society to continue functioning (this was created before the idea that following the entire torah to the letter would naturally fix all ills without any further intervention was invented)

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    13. Chaim, I just saw your latest comments, and it seems you missed some of the original points made in the post.

      1) I have already cited halacha 10, which permits regular guys to take up arms and publicly execute apikorsim. You seem to have missed that one, despite your wide erudition. Thus, it has everything to do with the matter, since these are matters that take place outside of the BD's jurisdiction. Problem being, that RAP might see this as a validation to kill people he dislikes.

      2) The midrashim give various numbers that were killed, between 300 - 3000. Just because you haven't heard of them doesn't mean they do not exist. They are Beis Hillel vs Beis Shammai. There are always ways of calling things not literal. OK, so maybe what I said was also not literal.

      3) Was the increase in murder and adultery also not literal? And the Biryonim, who set fire to food stores, was that also not literal? And howabout the 24,000 students of died during the Omer, can that be taken as just a Midrash?

      So your arguments break down here.

      As for comparing Tannaim with "wicked muslims", it seems you have lost the plot here. The midrashim speak of violence that took place. You may choose not to take it literally, but then why I should any Midrash or aggadita be taken literally? Do you reinterpret all midrashim, or only those that don't suit your ideology?

      But going back to the halacha, which you have glossed over -
      if you do not know, that is fine, but please don't give cause (based on your own ignorance) for RAp to speak maliciously. Rap talks a lot, but he has never actually given a dvar Torah. he speaks about politics, and power structures within Yeshivas, and who appointed whom. But ask a question about Halacha , and he can say nothing. Perhaps because the newspapers he "learns" all day do not teach much Torah. Thus, I have no interest to respond to his malicious comments anymore.

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    14. Chaim 2: "Discussing the meaning of a statement of Rashi, for example, is meaningless if one of the parties thinks that what Rashi says is irrelevant."
      Same goes for Rambam - if one of the parties does not read a particular Rambam, then discussing it will not be very productive.
      kol tuv.

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    15. One final point Chaim, this article describes both sides of the debate. It also mentions there was a fast on 9th Adar, for the 3000 students who were killed. It seems to me that RMF is interpreted differently in this article, however, I do not knwo what his true position was.

      So there is substantial Rabbinic opinion confirming that such a tragedy took place. Now , please could you and RAp eat some humble pie, having accused me of fabrications and lies.

      http://www.google.co.uk/url?sa=t&rct=j&q=&esrc=s&source=web&cd=3&ved=0CD4QFjAC&url=http%3A%2F%2Fpcjcr.pardes.org%2Fwp-content%2Fuploads%2F2013%2F02%2FJDCC-Occasional-Paper-2013.pdf&ei=lCYNUsLMMuXD7Aax8IGIDg&usg=AFQjCNGu-V3DtBt4HbpJD3A3h6Yyvdy-qA&sig2=XEbAZMbVCsZZRGqtkUmdSw&bvm=bv.50768961,d.ZGU&cad=rja

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  2. The Chazon Ish was asked whether nowadays it is possible to consider slacks as not such a forbidden garment, since so many women wear them. To this the Chazon Ish responded that in spite it being worn by many, it is absolute pritzus to walk around in such a garment, adding that he was convinced if at the time of the Sanhedrin a woman would have appeared in public in slacks, she would have been brought to Beis Din and stoned for behaving with gross indecency. See Orchos Rabbeinu, Vol. One, page 226.

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  3. We are fortunate that secular Jews and non-Jews prevent laws like some mentioned here from being observed in our time.

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    1. No, we are unfortunate in that regard.

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  4. The Tiferes Yisroel in Fifth Perek of Sinhedrin Mishna 1 brings this Rambam in Hilchos Malochim Perek 3:
    י כל ההורג נפשות שלא בראיה ברורה. או בלא התראה. אפילו בעד אחד. או שונא שהרג בשגגה. יש למלך רשות להרגו ולתקן העולם כפי מה שהשעה צריכה. והורג רבים ביום אחד ותולה ומניחן תלויים ימים רבים להטיל אימה ולשבר יד רשעי העולם:

    If the accused went free because of many other technicalities, Bais Din still "took care" of him, utilizing the din of מכניסין אותו לכיפה which is mentioned in Perek 9 Mishna 5 of Senhedrin. See also the end of the first Perek in Maakos.

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  5. The fact that the halachic system for punishing crimes was extremely lenient, so that criminals could - literally - get away with murder, is discussed at some length in the Drashos HaRan (Drasha 11). See my discussion of this topic here: http://shesileizeisim.blogspot.com/2013/01/the-weberman-conviction-and-torah.html

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  6. The application of misas beis din was in order to attain a kapora for the land becuase of the evil that has come into the world and to give the murderer, if he did tschuva and said viduy,at the time of the misa, a kapora for his evil of murder.

    Misas beis din was never for law enforcement. This is clear from the requirement of kabalas hasra'ah ('I'm doing this so the beis din will kill me.'). The cases of actual misas beis din were therefore very rare and could not possibly serve a law enforcement/social order function, beyond setting in people's mind the great evil of the crime of murder (Hakraza so the people will 'hear and fear').

    The issue of protecting society was handled by horas shaah of the beis din. (And, ideally, the king - when we had a functioning mondarchy). Now we lack everything and are mostly helpless.

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  7. No need to hire a gang, just don't answer when you are warned.


    Drashot HaRan in Drash 11 asks why the Torah requires both a beit Din HaGadol and a king. His answer is that maintaining social order is fundamentally a governmental function (i.e. the king). The role of the bet din to judge according to a spiritual ideal. Rav Yosef Soloveitchick used to teach that the power of the bet din to act extrajudicially (kipa and so on) applies when there is no king and the bet din takes on both roles.

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    1. The reason they are Potur is because truthfully only one person comitted the murder. If by the time the last person came to strike, the victim was already unable to survive the earlier Petch, then the last offender isn't a murderer. Since it isn't known who actually delivered the fatal blow, we can't prosectue anyone. This is clear if you learn the Sugya ans see Tosfos (Sanhedrin 78a D"H B'gossess) You see tht the Rambam compares this case to the case where a shot is fired from a crowd, where the issue is clearly the fact that we can't ascertain who actually fired the shot. True, in the first case mentioned, they are all wicked people, but murder is murder, and anything less is not quite murder. Obviously, they are to be viewed as exactly what they are - almost murderers and Safek murderers, but not Vaday murderers.

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