Torah law can be harmful to society

Aruch HaShulchan (C.M. 2:1-3): 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. Thus if the times require that this case be tried it must be done if we have the ability.  That is because if we insist that everything be done in accordance with the laws of the Torah - and we require 2 valid adult witnesses and proper warning not to commit the crime – the result will be that the world is destroyed. In fact Jerusalem was not destroyed except for the fact that the courts insisted in totally compliance with the Torah law [Rashba 3:393]. Thus in times of need, the courts have the right to administer corporal punishment and to give monetary punishments according to what they see is needed to correct the problems of society. If the litigant is a powerful person then he can be reported to the secular government to be tried and the secular authorities will order him to comply with what the Jewish religion requires of him. Anyone who has the power to make a protective fence to the Torah and doesn’t do it, he will have no protective fence either in this world or the next nor will he have descendants or remnants in his dwelling [Beis Yosef citing Zohar]. Similarly we are obligated to make sure that there shouldn’t be anyone with thoughts of rebellion – even unexpressed against the government of the Czar and his leaders. Our Sages said that G‑d made us take an oath not to rebel against the governments which rule us (Kesubos 111a)… 2) This ability to judge and punish - not according to the laws of the Torah - is only for the greatest Torah scholars or for the community leaders. That is because community leaders have the same power as that of the Great Sanhedrin.  Thus in our days the obligation is on the rav and the community leaders to fix the breaches in society with all of their ability. Thus every tax they impose, the community must comply and pay it – even though it means that some benefit from it while others suffer a loss. That is because this is important to correct community problems or take care of some other urgent need. Whoever interferes with this – is considered like Yeravam ben Nevat. One should not go against the decisions of community leaders even if there are scholars who support the opposition. That is because it is likely that those who are opposed to the community leaders have no fear of heaven. Investigate and you find it to be true. 3) However any matter which is not needed for the welfare of society or for emergency correction – the community leaders have no power to deal with against the wishes of those involved. All they can do is try and persuade the community to follow traditional practices or to collectively accept a particular action. Thus if a practice is firmly accepted by the community, the community leaders can force compliance with it…. Without either being an emergency matter for the community or having been fully accepted by the community – the leaders cannot do anything beyond the Torah law when there is gain for one party but loss for a second party. Alternatively if the community has an accepted practice that the leaders can do what ever they think is good or the community has fully accepted that the leaders can do whatever they wish – then in fact they community leaders can do whatever they see fit even if there is benefit to one party but loss to a second party. The leaders of the community should have their hearts directed to the desires of heaven and G‑d should help them. That is because someone who wants to achieve perfection receives Divine assistance.

 Shulchan Aruch (C.M. 2:1): Every court – even those that do not have semicha from Israel – if they see that the see that the people is corrupted by sin (and thus it is an emergency situation) can issue judgments whether concerning capital punishment or financial matters or any other punishments even without testimony according to Torah standards. If the transgressor is a powerful person than it is possible to punish him through the agency of non-Jews. Furthermore the court has the power to appropriate his money and to do with it what they see fit to strengthen the community. All the activities of the court need to be for the sake of heaven. This license to go beyond the letter of the law is specifically only for the greatest rabbis of the generation or the community leaders. It has been the practice in every place that the community leaders have the status similar to that of the Sanhedrin in that they can give beatings and punishments as well as appropriate a person’s property – all according to the local practice. Even though there are those poskim which disagree and say that the local communities authorities do not have such powers but can only pressure the community according to the local practices or their actions need to be agreed upon by everyone. However according to these poskim they have no power to make any changes in law in situations where there is benefit to one party and loss to another or to appropriate someone’s money without his agreement. Nevertheless one should follow the practices of the city. And surely these powers exist in fact everyone member of the community accepts that the leaders have these powers. The achronim mention in their responsa that some who is deserving of lashes should give 40 gold coins as a substitute for the 40 lashes. This is not according to the letter of the law but is only an emergency measure. Therefore the court has the emergency power to administer lashes or to take money according to what they see are the needs of the times (migder milsa).