Rabbi Dr. Shlomo Pill: “Worry About Your Own Soul, But Your Friend’s Stomach” (Parashat Shoftim)

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The Torah contains many hundreds of rules—both obligations and prohibitions—and also prescribes consequences for violating these laws that include compensatory payments, fines, lashes, and execution.  God also commands us to appoint judges and court officers, ostensibly to apply and enforce these penalties (see Devarim 16:18), and the gemarah notes that judges must be ready to zealously enforce the law when necessary (see Sanhedrin 7b).  The Talmud goes further, noting that courts are not only supposed to punish people for sinning, but may even force people to perform mitzvos (see Kesubos 86a-b).  Moreover, Chazal authorized properly constituted battei din to use whatever measures they deem necessary—even working outside the Torah’s system of courts, evidence, and punishments—to “fix the breaches of the generation,” a doctrine known as makin v’onshin shelo min hadin (see Sanhedrin 46b; Tur, Choshen Mishpat 2).    

This begs an important question:  What did halakhah-enforcement actually look like in those times and places when Jewish communities had the power and authority to uphold this very broad vision of what halakhic system entails?

We are all familiar with the famous Mishnah that calls a beis din that carried out more than one execution in seventy years, “murderous” (Makkos 1:10).  In that same Mishnah, Rabbis Akivah and Tarfon suggest that if they had been members of the Sanhedrin they would have found ways to avoid executing anyone.  Less well known, but just as important is the gemarah that notes that the Sanhedrin left the courtyard of the Beis Hamikdash some forty years before the churban in order to prevent battei din from carrying out death sentences (Avodah Zara 8b).  

At the same time, we find many instances of severe punishments being carried out by Talmudic rabbis, as well as post-Talmudic courts for a wide range of penalties.  Oftentimes, these punishments were not authorized by the Torah, were imposed following trials that do not comply with standard halakhic rules of evidence and procedure, and were used to sanction behaviors not even prohibited by halakhah (see, e.g., Bava Metziah 24a; Sanhedrin 27a-b, 46a, 58b, 81b; Responsa Rosh 18:13; Responsa Rashbah 4:311; Responsa Maharam Rothenberg, no. 81; Responsa Lechem Rav. No. 7).

Like many aspects of Torah and the rabbinic tradition, these approaches to enforcing halakhah in Jewish societies seem to pull of different directions, some eschewing coercively implementing Torah law and others flexibly using even extreme measures to punish illegal activities.

If we were to broadly survey the instances in which halakhic authorities used force to punish improper behavior or force compliance with the law, we find something very interesting.  Throughout the history of rabbinic Judaism, we find that the rabbis have consistently used their law enforcement powers to penalize bein adam l’chaveiro infractions—actions that cause or threaten actual material harm to other people or to the Jewish community.  At the same time, the religious and political leaders of Jewish communities have largely declined to use their coercive powers to punish people for sins bein adam l’makom so long as those acts did not hurt others or the community (for more on this, see my article, The Political Enforcement of Rabbinic Theocracy? Religious Norms in Halakhic Practice, Studies in Judaism, Humanities, and the Social Sciences, Vol. 2, pp 23-36 (2018)).

 Coercive rabbinic law enforcement was at its apex in responding to behavior that harmed others. During the Middles Ages, when Jewish communities in both Christian and Muslim lands often enjoyed the power to police their own members, rabbis actively regulated behavior that they viewed as impacting the material wellbeing of other people or of the Jewish community, and they enforced these standards with coercive means designed to compel compliance.  Thus, Jewish murderers were often killed or maimed; assailants were whipped, killed, or had limbs amputated, depending on the severity and frequency of their misbehavior; thieves, who are only subject of civil liability under Torah law, were fined, whipped, imprisoned, and sometimes killed; and wife-beaters were whipped or maimed. (For extensive discussions of this topic, see Simcha Assaf’s Ha-onshin Achar Chasimas HaTalmud and Aaron M. Schreiber, Jewish Law Decision Making: A Study Through Time 375-422 (1979)).

When it came to purely sinful behavior that did not hurt others, however, rabbinic practice generally avoided using force to punish offenders.  The Tur, for example, ruled that “one who is running . . . to violate any of the commandments of the Torah—even to desecrate the Sabbath or commit idolatry—is not killed [except by a Sanhedrin]” (Tur, Choshen Mishpat 525.  Many commentators explain that rabbis should not use their discretionary authority to enforce halakhic violations do not entail harm to an unwilling victim (see Bach, Choshen Mishpat 425:5; Sema, Choshen Mishpat 425:12). Even very serious sins like idolatry do not merit punishment if the sinner’s behavior did not cause “shame, disgrace, and harm to a victim” (Rashi, Sanhedrin 73a, s.v. aval ahrodef achar beheimah).

This historical reality—which may be somewhat surprising—highlights the relative seriousness with which Chazal and rabbinic tradition treat bein adam l’makom and bein adam l’chaveiro sins.  

Halakhah often treats interpersonal offenses more severely than ritual violations, and often finds greater flexibility in those areas of  halakhah that pertain to Jews’ religious obligations to God than in areas that govern relations between human beings.  The Mishnah teaches that Yom Kippur can only atone for offenses against God; when it comes to “sins between a person and his fellow,” however, “Yom Kippur does not atone, unless one has appeased” the person he hurt (Mishnah, Yoma 8:9; see also Mishnah Torah, Hilkhos Teshuvah 2:11).   Halakhah also contains mechanisms for modifying the regular rules of religious practice to accommodate serious economic, health, emotional, political, and communal needs.  We understand God to be accommodating and willing to compromise on His own interests, so to speak. This is not the case with respect to matters of bein adam l’chaveiro.  There, the halakhah warns us against taking liberties with the rights and obligations of human beings.  Any legal leniency offered to one party entails a corresponding legally unjustified burden upon the other party, which cannot be imposed without his or her consent.

We should appreciate and internalize this apparent prioritization of avodas Hashem.  Certainly, Chazal, Rishonim, and Achronim did not think that the ritual aspects of Torah were unimportant; they devoted their lives to explicating the details of bein adam l’makom laws and they were not shy about calling out sinful behavior when they thought their criticism would do some good.  But when it came to using force to compel Jews to follow the law and to punish them for violating the law, the rabbis seem to have been largely content to leave punishment for religious sins to God.  Yesh din v’yesh Dayan.  When it came to Jews acting in a way that hurt others in material ways—when Jews stole, or injured, or cheated, or assaulted, or oppressed others, or when they failed to responsibilities to others—rabbinic authorities acted decisively to deal with the problem and correct the harm.  

A famous saying of Rabbi Yisrael Salanter, founder of the mussar movement, comes readily to mind.   The essence of self-refinement is to understand that our job is not to focus on other people’s relationship with God while at the same time insuring our own comfort and material wellbeing.  

Instead, he said, “worry about your own soul, and about other people’s stomachs.” 

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