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.