I. The Great Rabbi Akiva Eiger
I was taught to only attempt answering one of R. Akiva Eiger’s questions indirectly. This famously brilliant scholar wrote a series of glosses on the entire Talmud, published as Gilyon Ha-Shas, often containing cryptic references to apparently contradictory texts. The challenges R. Eiger posed are substantial. Given his sharp mind, I was taught, he had certainly considered any direct answer and rejected it. Therefore, any obvious answer cannot be correct. You instead have to approach the problem indirectly and challenge assumptions.
R. Chaim Dov Chavel published a book explaining R. Eiger’s questions, summarizing answers that have been proposed and occasionally offering his own answers. However, he only covered a few tractates (the book was originally a series of articles in Ha-Darom, the rabbinic journal R. Chavel edited). What follows is my attempt to answer one of R. Eiger’s questions that R. Chavel did not reach, proposed tentatively for your consideration. I am fairly out of my depth in this, so I appreciate informed critiques.
II. A Terminal Murderer
The Gemara (Bava Kamma 84a), as part of a lengthy discussion why punishments cannot be the same as the crime, compares the cases of a blind man blinding someone and a terminally ill man who murders. In the first case, the criminal cannot be punished in exactly the same way that he injured his victim because the perpetrator is already blind. And in the latter case, the criminal cannot be punished with his crime because, as Rashi explains, his terminal illness renders any witnesses invalid. Since the criminal is already condemned (gavra keteila), the witnesses are trying to execute someone who will die anyway. Rebuttal witnesses (eidim zomemim) would not be able to inflict on the original witnesses exactly what they are trying to inflict on the perpetrator. This inability to be rebutted invalidates the original witnesses (eidus she-i attah yakhol le-hazimah). Therefore, the criminal cannot be punished.
R. Akiva Eiger (Gilyon Ha-Shas, ad loc.) challenges Rashi’s interpretation. According to it, the two cases of the Gemara are very different. In the first case, the court convicts the criminal but cannot punish him. In the second, the court cannot even be sure he is guilty because they lack testimony about his crime. Instead, R. Eiger (Chiddushim, ad loc.) suggests the Gemara is discussing when a terminally ill man murders in front of the court, in which case testimony is unnecessary.
III. Time of Punishment
In responding to R. Eiger’s challenge, I suggest that he is basing himself on an assumption he makes elsewhere, one which Rashi would not accept. R. Eiger assumes that a criminal is not subject to punishment until a court imposes it. However, according to Rashi, a criminal is immediately subject punishment on committing the crime but no one may impose that punishment until a court has tried and sentenced him. This can be seen in the following case:
If witnesses testify that a condemned man (gavra keteila) murdered someone else, and then they were rebutted, they are not executed because the man about whom they testified was already condemned. However, the Gemara (Makos 5a) states that if the murderer was not a condemned man but the rebuttal witnesses testify that the original witnesses lied and the murderer committed his crime the day before, the false witnesses do not receive the same exemption. In the first case, the man about whom they testified was already convicted and sentenced for execution (he was a gavra keteila), so the false witnesses are exempt. In the second case, the rebuttal witnesses testified that the criminal murdered before the original witnesses testified, but he had not yet been convicted and sentenced (he was not a gavra keteila). Therefore, the exemption does not apply.
Why doesn’t the exemption apply? Rashi (ad loc., sv. ke-she-ba’u) explains that when the original witnesses testified, the later testimony had not yet been introduced and the criminal could have, in theory, admitted the crime and avoided punishment. Since he could have avoided punishment, we do not consider him a condemned man (a gavra keteila). Tosafos (ad loc., sv. de-be-idna) disagree that a murderer who confesses is free from punishment. Rather, they explain, since witnesses about the prior crime have not yet arrived, and all are forbidden to kill him before a trial, he cannot be considered a condemned man.
R. Akiva Eiger (Gilyon Ha-Shas, ad loc.) is puzzled by the debate between Rashi and Tosafos. Someone who steals must repay his theft even without a trial. But a criminal is not subject to punishment, as opposed to remuneration, until a court imposes it. There is no punishment without a trial. Therefore, there is no need to say that the criminal may admit his crime or that people are fobidden to kill him. Before the trial, he is not considered condemned (gavra keteila) because the punishment has not yet been decreed.
The dispute between Rashi and Tosafos on the one hand and R. Akiva Eiger on other is whether a criminal is automatically subject to punishment when he commits a crime. According to Rashi and Tosafos, the trial is only to determine whether he actually commited the crime. According to R. Akiva Eiger, it is also to impose a punishment. The practical difference between the two views is whether a criminal should ideally punish himself. R. Akiva Eiger explicitly says he should not. According to Rashi and Tosafos, presumably he should. R. Ya’akov Emden (She’eilas Ya’avetz, vol. 1 no. 43) rules explicitly that someone who committed a capital offense should execute himself.
V. Parallel Cases
Returning to our cases in Bava Kamma, according to R. Akiva Eiger, the terminally ill man is exempt from murder because he cannot be tried for the crime. No testimony can be accepted due to a technicality. This is not parallel to the case of a blind man who blinds another, who can be convicted but cannot be punished in the same way he committed his crime.
However, according to Rashi and Tosafos as explained above, the terminally ill murderer is automatically condemned to be punished for his crime. The court merely cannot impose that punishment, due to uncertainty of guilt and/or lack of valid testimony. However, the criminal really is liable for that punishment and only exempt due to the court’s impotence in this case. It is, therefore, parallel to the case of the blind man who blinds in which case, also, the court is unable impose the deserved punishment. In both cases the court’s impotence prevents it from imposing on the perpetrator the punishment for which he is liable.