Sacrificing the Sinner

by R. Gil Student

I. Two Reasons for Punishment

Beruriah famously inferred from the Bible that God does want sinners to suffer punishment but rather to repent (Berakhos 10a). Does this desire for repentance mean that religious authorities should tread lightly with a sinner to prevent his going farther off the path? On the other hand, if authorities fail to punish wrong-doers, others will be emboldened to follow in their path.

Put differently, one purpose of punishment is rehabilitation, bringing the perpetrator back toward good citizenship. Another is to serve as a deterrent, scaring away other would-be criminals. When the goal of rehabilitation clashes with that of deterrence, which should Jewish authorities prefer?

In the modern Jewish community, post-Enlightenment and post-Emancipation, religious authority means something very different than it did when the Jewish community was autonomous and largely self-governing. For the current study, we will only examine pre-modern texts, with the latest being a responsum by R. Ya’akov Emden, who lived at the time that the Enlightenment began to flourish. Later literature overflows with the dilemma of dealing with sinners, the struggle of tradition in a non-traditional era. Rabbis of this time are full of angst over this dilemma. But their reality is so different from that of prior eras that their discussions deserve separate treatment.

II. Rebbe’s “Prophecy”

Three Talmudic passages are particularly relevant. The Gemara (Kiddushin 72a) records R. Yehudah Ha-Nasi’s surprising last words. He listed four places in Babylonia and denounced their residents. One city, he said, was full of mamzerim. Another of Amonites. In a third city, wife-swapping occurred. And in a fourth, they caught fish on Shabbos. R. Achi Bar Yoshiah was so upset that he excommunicated the people of this fourth city, who in turn proceeded to leave Judaism entirely.

R. Yisrael Isserlein of 15th century Austria (Terumas Ha-Deshen 2:138) quotes R. Alexander Suslin (14th century German author of Sefer Ha-Agudah) who uses this Gemara as proof that religious authorities should punish wrong-doers even if it will push them farther away from Judaism. The Talmud seems to approve of the action despite the unfortunate albeit predictable repercussions. A century later, far from R. Isserlein’s home Vienna, R. David Ibn Zimra of 16th century Egypt (Responsa Radbaz 1:187) infers the same conclusion from this passage.

Similarly, R. Binyamin Ze’ev of early 16th century Greece (Responsa Binyamin Ze’ev, no. 287) reads the passage similarly. He was dealing with a man who consistently insulted rabbis and denigrated conversos who had escaped Christian lands and returned to Judaism. This latter group had suffered religious persecution and now had to suffer this man’s insult. The offender deserved excommunication until he apologized and repented of his ways. However, there was apparently a concern that he would leave Judaism over the punishment. Based on the above Gemara, R. Binyamin Ze’ev ruled that the punishment should be applied.

Significantly, R. Moshe Isserles of 16th century Poland (the Rema; Shulchan Arukh, Yoreh De’ah 334:1) rules according to the Terumas Ha-Deshen (and the Radbaz and R. Binyamin Ze’ev). However, R. Yair Chaim Bacharach (Chavos Yair 141) of 17th century Germany, while agreeing with this ruling, questioned the interpretation of this passage.

The Chavos Yair was asked whether the community should fine and denounce a man who drank gentile wine if, in response, he would likely eat non-kosher food and leave Judaism entirely. The local rabbi decided not to punish the man so as not to push him farther away. When the Chavos Yair was asked, he strongly disagreed because leniency on this man might encourage other sinners by removing their fear of communal consequences. A court is even empowered to execute someone for a minor violation in order to prevent widespread lawlessness (Sanhedrin 46a). Certainly, the religious leadership may punish someone appropriately to similarly prevent lawlessness.

However, the Chavos Yair did not see the text about R. Yehudah Ha-Nasi as conclusive. In his opinion, the Gemara was only telling the story and not rendering judgment on the outcome. (R. Ya’akov Emden (She’eilas Ya’avetz 1:79) was puzzled by the Chavos Yair‘s change of opinion at the very end of the responsum when discussing this text. But I this it is clear that he was merely discarding this proof without changing his opinion.)

III. The Idol Servant

The Gemara (Kiddushin 20a-b) discusses the case of a man who sells himself as a slave to an idol, meaning to work on its behalf by chopping word or cleaning the area around it. Perhaps such a person who would sell himself to an idol should be abandoned. After all, he has clearly separated himself from Judaism. Maybe we should “throw a rock after the fallen.” No, the Gemara concludes, we must still redeem him from his servitude.

R. David Ha-Levi Segal of 17th century Poland (Taz, Yoreh De’ah 334:1) cites this passage as a counterproof to the Rema’s above ruling. Since we are willing to save someone from apostasy, certainly we will prevent causing someone to leave the fold. Better to refrain from action than to cause someone to abandon Judaism.

However, R. Shabsi Cohen (Nekudos Ha-Kessef, ad loc.), a younger contemporary and frequent sparring partner, disputes the relevance of this text. An individual must redeem his relative, even a servant to an idol. But that is about individuals. Why should we be surprised that we must care for our family, even if they are wayward? However, a court must fulfill its duty to punish wrongdoers, come what may. Otherwise society will crumble.

The Taz further quotes a ruling by R. Yehudah Mintz (Responsa Mahari Mintz, no. 5) about a divorced woman who married while still nursing, which is rabbinically forbidden. If the court attempted to force the couple to divorce, there was a distinct possibility that they would leave Judaism to avoid the verdict. Mahari Mintz ruled that the couple may stay together. The Taz sees here a proof for his approach that it is better to allow a violation rather than risk losing the Jews to religion.

However, as R. Shimshon Morpurgo (Shemesh Tzedakah, Yoreh De’ah, no. 48) of early 18th century Italy points out, the Mahari Mintz only reaches that conclusion because he found other reasons for leniency. He argued that a minority opinion among earlier authorities would allow this marriage. Additionally, he believed that as a single woman this nursing mother would act promiscuously. He felt that the minority opinion combined with his concern for the woman’s possible improper activity and that this couple might leave Judaism were sufficient for leniency.

R. Morpurgo’s case was even more vexing. Should the court censure a licentious woman who threatens to convert to Christianity along with her four young children? Even if you follow those who are unconcerned for the sinner’s possible apostasy, what about the innocent children? R. Morpurgo quotes the Rema’s ruling (Yoreh De’ah 334:6) that a religious court may prevent the circumcision of an excommunicated man’s children or even expel them from school as proof that we punish deviant parents even if it affects their children. While this approach is surprising, it recognizes that any action against parents cause the children to suffer. Should we refrain from imprisoning parents who commit crimes so the children will not be abandoned?

IV. Let Him Suffer the Consequences

The Mishnah (Ma’aser Sheini 5:1) states that someone should mark his forbidden food to prevent others from eating it by mistake. R. Shimon Ben Gamliel says that this does not apply to food that others can only steal. The Gemara (Bava Kama 69a) explains that R. Shimon Ben Gamliel holds the surprising view of “haliteihu le-rasha ve-yamus, let the wicked stuff themselves and die.” In other words, if they want to sin then they have to suffer the consequences, as serious as they may be.

R. Yair Chaim Bacharach (ibid.) applies this to the case of someone who may leave Judaism over punishment for his sin. He sinned and must suffer the punishment. If that causes more problems for him, it is his fault. The literature on this passage has grown significantly in recent years but that takes us past our chosen timeframe and must wait for separate discussion.

V. Community Priority

In an astonishing passage, R. Yitzchak Arama of 15th century Spain (Akedas Yitzchak, Vayera no. 20) discusses the general communal ambivalence to the use of Jewish prostitutes and the existence in a few places of communally supported brothels. The religious leadership in those places had decided that it was better for people to commit this sin rather than worse sins with married or gentile women.

R. Arama rails against this practice. He distinguishes between the sin of an individual and of the community. If an individual sins then he will be punished, either by human or divine hands. But if the community in general and the religious authorities in particular allow the sin, or even support it, then it becomes the sin of the entire community, a massive undertaking of sinfulness. Better an individual commit a terrible sin than the entire community commit together a smaller one. Therefore, the religious authorities cannot look the other way but must condemn and attempt to prevent such sin.

There is a concept in Jewish law of preferred ignorance. If someone is going to ignore warnings and commit a sin, better not to inform him that the act is forbidden. In this way, at least he is sinning accidentally rather than intentionally (e.g. Shabbos 148b). However, this rule has limitations. For example, it only applies to rabbinic violations and not biblical (ibid.). R. Shimon Ben Tzemach Duran (Responsa Rashbatz 2:47), in 16th century Algeria, rules that we set this concern aside for the sake of the community. We inform a community that an act is forbidden to prevent the general populace from sinning, even if an individual will thereby become an intentional sinner. Similarly, R. Bacharach (ibid.) writes: “we worry about the interests of the community even if it is against the interests of the individual.”

VI. Other Considerations

The Radbaz (ibid.) adds other considerations. First, Jews are responsible for one other–Kol Yisrael areivim zeh la-zeh. However, the application of this principle could easily be reversed on the Radbaz. If we are responsible for their current sins, certainly we should avoid causing them to commit even worse sins. However, the Radbaz quotes the verse (Lev. 20:4): “And if the people of the land hide their eyes from that man…” On this verse, the Sages (quoted by Rashi) say that if the court ignores one sin they will eventually ignore many sins. In other words, by failing to properly rebuke a sinner you are enabling him and others to sin more.

Additionally, if we decide not to punish sinners then society will break down. Without law enforcement, there will be no order. Theft, violence, adultery and the like will proliferate. In other words, society as a whole needs the deterrence, which prevents us from reducing the criminal’s sentence. Similarly, R. Ya’akov Emden (ibid.), in discussing someone who stole from a man, committed adultery with the victim’s wife, defamed him and caused his death (presumably through aggravation), rules that the perpetrator may not be accepted into the community without returning the stolen money to the deceased’s family and asking their forgiveness–even if this requirement causes the transgressor to leave Judaism. R. Emden argues that if we fail to enforce the law then not only will justice be perverted but the deterrence will be diminished and violations will spread further. Additionally, we cannot maintain the strength of deterrence if we enforce the law selectively. If we force other people to repay their thefts then the authorities must also force this man.

The Radbaz also suggests that someone like that will often leave religion regardless of what the religious authorities do. Others point out that some people who threaten to leave the community do not really intend to. It is generally difficult to gauge whether these possibilities are serious concerns.

VII. Conclusion

The Radbaz reaches a wise and important conclusion. He points out that this is a sensitive matter that must be carefully considered by the generation’s highest leadership. Every person is different and every transgression is different. If we truly believe that mercy will rehabilitate the sinner, then we should help him return to good standing. Ultimately, it the judge must decide based on his best judgment.

Contemporary Jewry faces very different communal challenges than pre-modern Jewry. Of course, that does not mean we ignore the ample precedents. However, these rulings must be carefully applied, taking into account the changed circumstances. Unsurprisingly, there is a large body of literature of religious authorities of the past two centuries doing just that. I leave surveying that literature as a subject for a future essay.