I. Preventing Sin
Like all legal systems, Jewish law allows for its enforcement. Courts are empowered to compel action and forcibly prevent misdeeds. But courts are not always sufficiently speedy and sometimes individuals need to act. Perhaps surprisingly, Jewish law affords individuals certain rights to enforce its rules without prior authorization. In a prior post, we discussed whether a mugging victim may kill his attackers (link). Here we will discuss an individual proactively coercing another to prevent sin.
The key principle is Afrushei Me-Issura, separating someone from or preventing sin. Not only is a parent obligated to keep his older child from sinning, for example eating non-kosher food, all Jews must attempt to prevent this sin (Rema, Orach Chaim 343:1; Mishnah Berurah, ad loc. 7). We are a community, each responsible for the other (Sanhedrin 27b). The Minchas Chinukh (239:6) locates the precise source for this obligation regarding adults in the prohibition to watch idly as a fellow dies (Lev. 19:16). We must be concerned for another’s spiritual welfare in addition to his physical. How far must we take this?
The Gemara (Bava Kama 28a) states that a former master may forcefully send forth a freed slave who wishes to remain with his slave wife, permitted to him in his former slave status but now forbidden to him in his freed status. With what right does a man hit another free man? The obligation to prevent another Jew from sinning.
II. Preventing Others
The Terumas Ha-Deshen (1:218) deduces from this Gemara that a person who witnesses someone under his supervision committing a sin may hit him to stop him from sinning. He explicitly permits doing this without obtaining court authorization. The Rema (Choshen Mishpat 421:13) rules like this Terumas Ha-Deshen. R. Alfred Cohen (“Taking the Law Into One’s Own Hands” in The Journal of Halacha and Contemporary Society XXXV, Spring 1998, pp. 12-13) includes among those under a person’s supervision: children, students and others in similar situations. Ostensibly, this permits corporal punishment–spanking–in homes and schools, as well as certain forms of wife beating and husband beating. However, as we will see, there are important conditions that must prevail before allowing such preventive punishment.
The Rosh (ch. 3 no. 13) extends this Gemara’s permission further. He writes that if one Jew is hitting another, a third person may hit the attacker to prevent him from sinning. The Rosh’s choice of language is important. He does not say that you may resort to violence against a violent attacker. He says that you–an individual, not a court–may hit him to prevent him from sinning. Significantly, the Shulchan Arukh (Choshen Mishpat 521:13) quotes this Rosh with the rationale intact.
Similarly, the Maharshal (Yam Shel Shlomo, Bava Kama 3:9), after quoting the Terumas Ha-Deshen, deduces from the above Gemara that any Jew may hit another to separate him from sin: “כל בר ישראל יכול להכות חבירו כדי לאפרושי מאיסורא.”
III. Debating Coercion
While it would seem from the preceding that the Mechaber, the author of the Shulchan Arukh, and the Rema disagree on the extent of the permission, I believe this is incorrect. After the Mechaber quotes the Rosh’s broad permission, the Rema states “and also (ve-khen)” and quotes the Terumas Ha-Deshen. He seems to me to affirm the Mechaber‘s position.
The Ketzos Ha-Choshen (3:1) and the Nesivos Ha-Mishpat (3:1) seem to disagree whether a court must authorize coercion to refrain from sinning or an individual may do it without authorization. The Nesivos infers that the Ketzos opposes individual action and disagrees. However, in the Ketzos‘s response to the Nesivos, called Meshovev Nesivos, he seems to concede on this point (link). He explicitly allows an individual to hit his fellow to prevent him from violating a prohibition.
R. Hershel Schachter (Eretz Ha-Tzvi 40:4, p. 261) quotes the Shakh‘s explanation of the Bach that a person may act without court authorization because “it is as if he stood in judgment” (Tekafo Cohen, ch. 24). In other words, a person serves as a messenger, a representative, of the court. Therefore, R. Schachter continues, a person can forcefully prevent his fellow from sinning just like an official court representative may.
IV. Violent Protests
R. Moshe Sternuch (Teshuvos Ve-Hanhagos vol. 1 no. 368 – link) was asked whether a child may destroy his parents’ television. Assuming that doing so constitutes preventing committing a prohibition, R. Sternbuch quotes the Nesivos and Ketzos about whether a person requires court approval to do so. I’m not sure why he states that the Ketzos disagrees. Perhaps he reads the Ketzos as only allowing action when a sin is occurring and not in advance, but I find that reading implausible. Regardless, R. Sternbuch rules like the Ketzos as he understands it and forbids the destructive behavior.
However, if we accept that a court’s prior approval is unnecessary, is such a child justified in attempting to force his parents to avoid violating a prohibition? Are the Charedim who throw stones at car drivers on Shabbos justified in using violence to prevent those violations? There are three other reasons why this would not be allowed:
- R. Alfred Cohen (ibid., p. 13) emphasizes the Maharshal’s (ibid.) concluding condition. Only someone who is “undoubtedly known for his rectitude, about whom it is known that he is acting strictly for the sake of heaven, and that he is a person who is important and outstanding [in the community]” may act to forcefully prevent another from sinning. This condition only allows for responsible intervention.
- R. Hershel Schachter (ibid., n. 5) argues that physical coercion is only allowed if it is pedagogically effective. There was a time when corporal punishment served as an important educational tool. However, as R. Shlomo Wolbe argued, that is no longer the case (link). Today, someone who breaks a television or diverts a car on Shabbos only forces the victim of his violence to buy a new TV or drive somewhere else. He does not prevent the sin and, therefore, is forbidden to use violence.
- Additionally, the Maharshal (ibid.) states that violence must be the last resort. You must repeatedly attempt to persuade the person to refrain from sinning, using all available methods until only force is left. Presumably, if a court is available you must also submit to its power before resorting to personal force.
Vigilantism is dangerous. It quickly leads to anarchy, a state that is inhospitable to communal stability and religious growth. However, the Torah is meant for all times and places. Circumstances can exist in which courts are impotent, ineffective or non-existent and an individual’s ability to assert the Torah’s commands are needed. In those times, personal initiative is required.
“The Terumas Ha-Deshen (1:218) deduces from this Gemara that a person who witnesses someone under his supervision committing a sin may hit him to stop him from sinning. He explicitly permits doing this without obtaining court authorization. The Rema (Choshen Mishpat 421:13) rules like this Terumas Ha-Deshen. R. Alfred Cohen (“Taking the Law Into One’s Own Hands” in The Journal of Halacha and Contemporary Society XXXV, Spring 1998, pp. 12-13) includes among those under a person’s supervision: children, students and others in similar situations. Ostensibly, this permits corporal punishment–spanking–in homes and schools, as well as certain forms of wife beating and husband beating.”
I am surprised that a husband would be considered under his wife’s “supervision.” What is the source for that?
I heard in the name of the book Mishmeres Chaim that you can only use force if there’s no other way, which is why you can’t beat someone up for stealing your possessions (you can just make them hefker and that would make what he is doing not a sin).
Regarding Maharal’s condition that it must be done l’shem shamayim the Sanz Klausenberger Rebbe zt’l explains that a self styled zealot can be seen as false because he acts out of anger:
יש סימן בידנו להבדיל בין קנאות אמיתית לשקרית, אם כשאדם רואה את חבירו נכשל בעבירה, הוא מתעורר בכעס עצום וחמתו בוערת בו, עד שעינו שולט במעשיו והורג אותו, אין זה קנאת ה’ אלא תוצאה של כעד וחרון אף. הוא אינו קנאי אלא כעסן. וכיון שאין כוונתו לשם שמים, חל עליו איסור לפגוע בחוטא. קנאות אמיתית לשם שמים היא רק באופן שאדם מישראל שרואה את חבירו נכשל בעבירה חמורה, מתמרמר ומצטער שעיניו רואות דברים כאלו, לבו כואב כל כך על עלבון השכינה עד שכמעט יורד מדעתו, ומחוסר ברירה ומפאת רצונו העז לנמוע חילול ה’, הוא הולך להרוג את החוטא. גם בשעמ שהוא הורג, פלגי מים ירדו עיניו וכואב לו עד דכדוכה של נפש, שהגיע למצב כזה, שהוא מוכרח לעשות פעולה נגד רצונו וטבעו…..(שפע חיים משמ”ב פשרשת ויגש)
“However, as R. Shlomo Wolbe argued, that is no longer the case.”
Where is the evidence for this, aside from that people say it a lot? All we really know is that the gentile world decided that corporal punishment in schools and, to a large extent, in the home was illegitimate and, at roughly the same time, standards of behaviour in a wide variety of fields markedly dropped. Then the Jewish community decided more or less the same thing and the same thing happened again.
What seems to be happending is a curious case of mixing up groundless, and in fact demonstably falsified, liberal dogma (analagous to “you can’t stop teenagers from having sex”, “unemployment benefits do not encourage higher unemployment”, “people are born homosexual independent of social circumstances”,) the evidence for which is simply that identifiably respectable people say it a lot, on the one hand, and nishtanah hateivah idelology, on the other. However, in reality, olives were always the size of olives, demons never existed and there have never been rodents, worms, or lice that reproduce via spontaneous generation.
So where is there acctual proof that schools and parents who continue bizman hazeh use corporal punishment fail in their goal to bring up more disciplined and moral people (and doesn’t the lack of these things seem to be positively correlated with social disintegration and anarchy rather than the reverse as the conclusion, to this otherwise splendid, post mystifyingly suggests)? Has corporal punishment become markedly less effective in, say, the Amish community recently?
(Ironically, the young Haredi thugs who commit Chillul Hashem b’farhesya it seems on an almost daily basis nowadays – on the pretext of stopping people commiting the “sin” of wearing long blue denim skirts rather than black pencil skirts or whatever – are a product, among other things, of the alarming ultra-liberalism that has become prevalent in the Haredi world towards child rearing in the last two decades more or less under the radar and largely unknown to the outside world)
I recall that Rav Wolbe writes in זריעה ובנין בחנוך that punishing a child when you can reasonably assume that the outcome will only be that the child will rebel against parental authority constitutes a לפני עיור של בן סורר ומורה.
/ there are studies on corporal punishment, not just expert say-so. The studies purport to show various negative consequences vs other foms of childrearing. They can be critiqued on various grounds but this is not a made up belief. Importantly, physical discipline has more negative consequences is cultures wherre it is taboo (self fulfilling prophecy?). The laizzes faire attitude towards child rearing among many charedim arguably stems less from the abandonment of corpoal punishment (which is alive and well) but as a natural consequence of the peculiar combination of huge families, working mothers, and poverty that makes quality childcare unattainable for most. I think it is a mistake to call it “ultra liberalism” and imply it is mostly ideological, when it is better characterized as simple neglect.
It was apparently on this basis that R’ Shlomo Zalman Auerbach protested arrests of those who spray painted immodest bus stop ads in Israel. He assumed that those who did so were pure-hearted in their motives.
SA is very clear that corporal punishment (of children; doesnt distinguish between parents, teachers, others) should not be done during the (upcoming) three weeks, only. otherwise …
Chanock:
I wrote with a certain degree of pique, which, as is the way of things, was not wholly generated by the post itself. I would not defend the claim that there is no evidence whatsoever that corporal punishment doesn’t work or works towards bad ends.
However, I do still affirm that:
(i) the dogmatic status of such claims is based on its frequent repetition by identifiably respectable people and (more importantly)
(ii) no available evidence supports the specific claim in question, namely that corporal punishment used to work, but does not work anymore.
Now, you have presented an argument in favour of the argument, but I don’t think it holds. Orthodox Jewish subcultures are perfectly capable of creating taboo codes independently of wider society. That an indvidual parent in a culture where corporal punishment is frowned upon (or worse) may well be unsuccessful in using it does not exonerate a society that adopts such beliefs if they are in fact erroneous.
Sefer Mishlei tells us that he who witholds the staff[!] hates his son. Now, translated from the language of parallelistic rhetorical ethical exhortation into logical debate we might want to say something more like “While it is evidently true that many parents can and will successfully bring up children without resorting to corporal punishment, it is nevertheless the case that statistically speaking it is unwise for a society to abandon such means of discipline for superficially compassionate reasons, especially if the society in question desires its children to be raised with certain characterisitics that may well not be valued by sociologists involved in research into the matter. This is especially the case for parents who are not lucky enough to enjoy the benefits of an affluent middle class existence, which gives far more room for adolescents to “get it out of their system” without disastorous consequences than other less fortunate people.”
As regards Haredim, I can ony speak from my own experience which is of communties where, thanks to the welfare state and numerous wealthy and philanthropically minded individuals, poverty in any meaningful sense is, for now, basically non existent. I wouldn’t call their children neglected either and I would say that they are, by far and away, the most happy set of children I have ever come across and, for the most part, the most charming. Nevertheless, a great number of them have basically never been seriously disciplined by anyone in their life ever. Consequently, a certain proportion of them have extreme difficultly adapting themselves to the responsiblities of adulthood.
There are a number of factors at play. One is the absolute terror of children associating Judaism with anything negative and hence going off OTD, another is the unfortunate reality that wheras a child not being a yirei shamayim is merely unfortunate, their not being “heimish” is disastorous social death. However, one factor among many is certainly the infiltration of modern ideas about how to treat children. You can build all the walls you can against the modern world, but things will still creep in the back door and you won’t even notice when they do.
By way of anecdote. A girls school (and so one where secular subjects are taught) called in a non-Jewish “behaviour tsar” whose job it is basically to deal with the wreckage in the state school system left by 40 years of progressive reform, whilst remaining bound by the laws of engagement of contemporary liberalism. (Obviously, the Haredi school system does not begin to reflect the conditions of the wider world where, in Britain, 2/5ths of teachers have been physically attacked by a student). One suggestion was to put up names of anyone disobedient during a lesson on the whiteboard, who would then be expected to wait behind after the lesson. It was nixed by the teachers based on their understanding of the Rashi on Tamar re. never embarrassing another Yid in public.
Thinking about it, I’ve been mixing up two different things. One is the increasing proliferation of behaviours that I think make the world a less pleasant place(poor table manners, lack of basic etiqutte on public transport, littering, terrible grammar and spelling) and the other is the serious problem of maladjusted and sometimes hooligan young males. I need to go and think through this a bit more. In the meantime, I retract all that I have said, with the reservations that I think it is by no means proved that corporal punishment used to work and doesn’t now and that it seems odd to classify corporal punishment by parents and teachers with vigilante action and anarchy.
* And since I let myself in for in it, the above should read proven, etiquette etc.
Isn’t this also an example of vigilantism? Rambam seems to say that if you see a heretic in a hole with a ladder you may take away the ladder in order to ensure the heretic dies. He doesn’t say anything about consulting a beit din first.
gil, thanks for the well researched post. just one small but important correction to a typo: when you quote the rosh, you write “attacked” instead of “atacker”.
Yirmiahu –
You posted some words from the San Klausenberger Rebbe
גם בשעה שהוא הורג, פלגי מים ירדו עיניו וכואב לו עד דכדוכה של נפש, שהגיע למצב כזה, שהוא מוכרח לעשות פעולה נגד רצונו וטבעו…..(שפע חיים
משמ”ב פרשת ויגש
I am wondering though, does the Torah say or give any indication that Pinchas ben Elazar ben Aharon Hakohein, the quintessential kannai, fit the profile that the Rebbe gave?
The Maharshal also says, as quoted in the comments to your first wifebeating post, that
שמותר אדם להכות את אשתו שהיא מקללת אביה ואמה. מחמת שעוברת על דת, ועביד דינא לשמים.
How does the “avid dina leshamayim” rationalle fit with or differ from the “afrushei me-isura” idea? On its own “avid dina” sounds like it includes even hitting after the fact, as punishment. However that reading is difficult with the “ve-chen” that introduces the afrushei me-issura idea (expanding the context beyond wives/avadim), which suggests that the two are the same. But if they are really the same why say “avid dina” instead of “afrushei me-isura” at first? How would one translate “avid dina” in order to make it mean prospective deterence rather than retrospective punishment?
Mordechai-
While as I recall he generally touched upon the account of Pinchas when addressing kana’us, I doubt the Sanz-Klausenberger Rebbe meant to give over the peshat. At the same time I suspect that he would not be inclined to see a violent action committed in anger as plausibly l’shem shamayim so I doubt that this is how he would understand Pinchas’ actions.