by R. Gidon Rothstein
The Rest of the Punishments as a Physical Element in a Jewish Life
We’re in the middle of Peri Megadim’s list of bodily punishments sinners might suffer in Judaism, part of his third-part review of how the body plays into Jews’ service of Gd.
[By placing sacrifices on his list, Peri Megadim seems to be assuming it is a punishment, where we usually treat it as a vehicle for atonement.] More, today sacrifices do not exist, other than in our words. Hoshe’a 14;3 [from the haftarah for Shabbat Shuvah, before Yom Kippur] has the phrase u-neshalemah parim sefateynu, loosely translated as “we will fill in for bulls with our lips,” taken by tradition to mean that reciting the verses where the Torah describes a sacrifice counts to some extent like offering it.
The idea led to the practice to recite the verses of the sacrifices daily. Unfortunately, some sacrifices can be offered only if the sinner knew of the sin beforehand. Someone who knew a certain action violated Shabbat, but did not realize it was Shabbat, and then found out, could certainly recite the verses to replace the hatat s/he has not yet offered. But a custom arose to say the verses, then say if I owe a hatat, let this count; Magen Avraham already pointed out the impossibility of offering a hatat just in case.
Some opinions do allow offering an asham (a sacrifice offered for only a few sins, such as false oaths or gezelah, brazen stealing) even where the person had not known of the sin beforehand. In such cases, s/he could say, “let these verses count as my sacrifice if I committed a sin covered by them, for those authorities who think it works. For the ones who require knowledge of the sin before committing it, let this be just an act of reading verses from the Torah.” There’s no problem with reading the Torah verses for the hatat, either, it just can’t count as a sacrifice unless the Jew knew of a sin that obligated one.
Tevu’ot Shor did accept a conditional recitation if the person only forgot which sin. Where the person is unsure if s/he had known the sin before committing it, well, one can always read verses, but that’s not a circumstance where an actual sacrifice works.
In the next section, Peri Megadim returns to a detail about hatat I will put here. Tradition assumes Gd (the Heavenly Court) does not punish people until they turn twenty. Peri Megadim assumes the sin still counts as a full wrong, however, such that the person can and should bring a sacrifice once s/he reaches that age. [The act is a full sin as soon as the child reaches majority, just the Heavenly Court does not punish. The sinner him/herself does need atonement.]
Karet and Lashes
The punishment of karet can be absolved by court-administered lashes, all the more so by the death penalty for sins where the Torah prescribed it. Peri Megadim is unsure whether one set of lashes or the death penalty for one sin will cover another as well. [A person is warned by witnesses regarding a capital crime s/he is about to commit on Shabbat, whose violation also incurs capital punishment. The court convicts the sinner, puts him/her to death. Is the Sabbath violation also atoned? Peri Megadim is unsure.]
Other sins only have lashes as the prescribed punishment, some in Orah Hayyim [the section of Shulhan Aruch Peri Megadim is introducing], such as performing prohibited creative activities on holidays or eating hametz (leaven) on Erev Pesah after midday [the time for the Pesah sacrifice, a time when the Torah explicitly prohibited eating leaven].
There are, however, five types of prohibitions without lashes, for technical reasons of how the Torah constructed them: where there is no action (such as lashon ha-ra, speaking ill of someone else); a prohibition stated to give a second warning for a capital punishment crime, because of the requirement any capital crime must have two verses in the Torah; a prohibition that really establishes an obligation; a prohibition that covers many different rules (lav she-bichlalut); and one that can be rectified with a payment (lav ha-nittan le-tashlumin).
As he notes, each of these has a voluminous literature around it.
Makkat mardut translates literally as “lashes of rebellion,” most commonly connected to courts’ enforcement of rabbinic law. [At times, these kinds of lashes can be given for Biblical laws as well, but Peri Megadim does not get into that.] He focuses on the rights of courts to give these lashes even outside of Israel, even by judges lacking the original semicha, ordination, necessary for Biblical lashes.
He also thinks the Gemara indicates warning is not necessary, where it is necessary for Biblical makkot. He seems to say, also, in any case where a court is certain the sinner knew what s/he was doing with a Biblical sin (we know the sin was deliberate, just witnesses did not warn the person, or the sinner is known to be knowledgeable), the court could give makkat mardut.
[He does not take this any further, but the ideas he presents seem to say makkat mardut is more about maintaining communal discipline than punishment. For punishment, we have strict procedural rules. Where a sin has occurred, without all the necessary factors for that higher Biblical level, we turn to makkat mardut to make the point this sin was unacceptable. Or so his facts suggest.]
In a later section, Peri Megadim notes these makkot can be handed out in our times. Most of the punishments in the halachic system require proper courts, but today’s courts can still do this. [As long as local laws permit.]
Another example of what seems to me a disciplinary punishment rather than an official systemic response is kippah, where a court places a sinner in straitened conditions, with a poor and harmful diet, until s/he dies. The prime example of a sinner eligible for kippah is one who has for a third time violated a sin punishable by karet. The first two times, the court gave the lashes, meaning the sinner did the sin in the face of warning, bore the punishment, and did it again (and now a third time), a sign of rebelliousness or indifference to halachic standards. It must all be the same karet sin—different sins or ordinary lashes sins will not lead to kippah, [But the idea does seem to me to indicate a limit to courts’ patience. With serious sins, the court gives the sinner two chances, and that’s it.]
Kippah teaches us about halacha le-Moshe mi-Sinai (HLMM) as well, because we usually do not arrive at punishments based on an HLMM, a rule known orally since Sinai (as Peri Megadim said back in Part I). Here, the prohibition is explicit in Scripture, the HLMM just confers a right on the courts to react a certain way.
While we generally say the sinner must be committing the third instance, Sanhedrin 81b also speaks of kippah if the person sinned repeatedly while only nodding his/her head to witnesses’ warning rather than saying “yes, and even so.” A court could not give Biblical lashes, but if this is the third time, kippah is still the way to go.
Peri Megadim wonders why the Gemara would speak of being lashed twice if the court would put even such a head-nodding sinner into kippah. He suggests we might have thought the lashes absolved the sin, resetting the clock, making it as if s/he had never done this [he is saying court punishment does not expunge the record].
A murderer will be put into kippah after one proven instance of deliberate murder a court cannot punish. It receives unique and quicker lethal attention because murder destroys society.
Kanna’im Pog’in Bo
While kippah does not require the same procedure as most punishments, the next category is out of the hands of the courts completely. For only a few sins—the most well-known one is a man having sexual relations with a non-Jewish woman in public—those righteously offended by the breach of law may kill the sinner.
Without calling it a category, Peri Megadim folds in the concept of rodef here, the idea Jews can intervene in certain cases, with lethal force if necessary, to prevent a crime. An easy example is murder, Jews have the right and responsibility to kill a man intent on murdering someone else, to protect the victim.
However, the permission to kill only extends to where lesser force would be ineffective. Someone who kills a rodef unnecessarily, if warned by witnesses, would him/herself be liable for murder. In addition, were the event to occur on Shabbat, the person might be on the hook for Shabbat violation.
According to Rambam, wounding someone is mefarek, a Shabbat-prohibited action of removing blood from where it was in the body, where killing someone belongs to its own separate category. A person who kills rather than wounds a rodef could have done “only” mefarek, a lesser violation because the person stopping the crime has no need of the blood, so it’s a melachah whose outcome is unimportant to the person performing it. If s/he instead killed the rodef, it would be a full Shabbat violation, without the excuse of needing to stop the rodef.
Peri Megadim names the last category without defining it [nidui is an early form of excommunication, where the person banned is supposed to mourn his/her having been somewhat excluded from society, as society is supposed to exclude him/her to some extent; it breaks down when people refuse to shun the person, and weakens society’s ability to enforce its norms and standards].
He focuses on two of the reasons it will be declared, the person treats words of Torah disrespectfully, or (according to Lehem Mishneh) if s/he violates the second day of holidays outside of Israel. Peri Megadim notes the Gemara calls the second day of Yom Tov a minhag, a custom, so Lehem Mishneh seems to assume Hazal were stricter about it, to punish it even without the sinner violating the day disrespectfully or willfully. Peri Hadash also said courts have the right to place someone in nidui or give makkat mardut (as we have seen) wherever the normal punishment for a sin cannot be applied.
Last, Peri Megadim points out the rules for nidui make special exception for Torah scholars. While the system thinks of nidui as harsher punishment than makkat mardut [a lesson in the importance of being part of society], the embarrassment to Torah in expelling a scholar publicly, even temporarily, means we generally opt to discipline Torah scholars in private (when needed), and through lashes rather than nidui.
As I had already reported, he closes this section by linking punishment to the bodily experience of Gd and Torah, a topic he will return to next time when picks up with shome’a ke-oneh, whether hearing something can count as reciting it oneself.