I. Going Down With The Ship
R. Jonathan Sacks recently quoted historian Paul Johnson as saying that one of Judaism’s greatest achievements is “giving equal weight to individual and collective responsibility” (link). While Communism overemphasizes the communal and the secular West the personal, Judaism negotiates between the two. This attitude also appears when identifying a person’s individual and familial roles. Sometimes you are not just an individual but the member of a specific family, for better or for worse. I think this helps explain a difficult Rambam.
Rambam (Mishneh Torah, Hilhos Avodas Kokhavim 4:6) describes the process by which a court investigates and condemns an idolatrous city (ir ha-nidachas). As we know, this has never actually taken place and never will. Yet this theoretical law is still a matter for study. Here is the process:
II. Executing Idolators
When appropriate, the high court in Jerusalem investigate a city until it knows with certainty that all or most of the residents of a town worship idolatry. The court then sends two scholars to rebuke the town. If the residents continue in their wicked ways, the court calls all Jews to war against this city. After it is captured, many courts are established to judge each of the residents.
Anyone about whom two witnesses testify worshiped idolatry is set aside. If they are less than half the city, then only they are executed (by “stoning”). If they are the majority, then only they are brought to the high court which executes them, including their wives and children, by the sword. If everyone in the city worshiped idolatry, then they are all executed including the women and children.
Rambam’s repeated mention of worshiper’s wives and children raised questions already in the Middle Ages. (Note that Ramban on Deut. 13:16 appears to agree with Rambam.) The Migdal Oz quotes R. Meir Ha-Levi Abulafia as questioning Rambam’s inclusion of women and children in the men’s punishment. What did they do to deserve execution? Furthermore, what are his textual sources for this startling claim? Migdal Oz quotes a defense by the sages of Lunel, offering three sources and/or explanations. The texts appear more supportive of the argument that innocent children die alongside their fathers than that wives follow their husbands to death.
III. Saving the Women
Dr. Benny Brown, in his masterful work on the Chazon Ish (available here: link), expresses surprise that his subject reinterpreted Rambam to avoid the issue of wives (pp. 661-667). The Chazon Ish (Sanhedrin 24:14) states repeatedly that it is inconceivable that the Torah would execute a woman for her husband’s sin. Instead, he explains that Rambam only means that women who worshiped idols are executed along with their husbands. Those women who are innocent are certainly not executed for their husbands’ sins.
Dr. Brown points out that the Chazon Ish explicitly maintains his explanation its slight difficulty fitting into the Rambam’s words. Yet this cannot be simply a case of morality overriding law because the Chazon Ish voices no discomfort over children dying for their fathers’ sins. Rather, it is a matter of law. An innocent adult cannot be judged guilty and executed for a crime she didn’t commit.
R. Meir Ha-Levi Abulafia and the sages of Lunel read the Rambam simply — that innocent women are executed for their husbands’ idolatry. The Kesef Mishneh quotes this exchange with seeming approval, albeit concluding that he disagrees with some of their ideas. The Minchas Chinukh (564:20) also assumes the Rambam means innocent wives are executed with their guilty husbands.
However, other recent scholars have similarly reinterpreted the Rambam. R. Menachem Krakowski (Avodas Ha-Melekh, ad loc.) explains, in the name of R. Chaim Soloveitchik, the Rambam and Ramban to mean that guilty women are executed without the required warning if their husbands’ received it. They are only included in their husbands’ execution in terms of warning, but the crimes are their own.
R. Krakowski’s nephew, R. Ahron Soloveichik (Parach Mateh Aharon, ad loc.), offers an entirely different explanation without quoting his uncle or grandfather. Women are exempt from punishment as enticers to idolatry. Rambam (and Ramban) are only saying that this exemption does not apply to idolatry itself, for which guilty women will be executed alongside their guilty husbands.
IV. Collective Punishment
If these interpretations are correct, then they are. However, I am not certain they are necessary. As part of a family, sometimes you suffer for a fellow member’s misdeed. This is particularly true for a husband and wife, who have joined into one unit (link). If they are one unit when it comes to fulfilling commandments, why not sins as well?
However, this seems more like divine punishment than human. God judges on multiple levels, individuals and groups. Human courts only look at individuals and evaluate the evidence against each person. Rambam emphasizes the establishment of special courts to judge these possible idolators yet where else does a court convict someone for a crime someone else committed? This is, presumably, precisely the problem that so bothered the Chazon Ish.