Lesson 39: Shelach

From the book Mida Tova: Articles on the Principles of Halakhic Thinking by Rabbi Michael Avraham. Translated from Hebrew using gpt-5.4 (reasoning_effort=high, batch API).

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With God’s help

Concepts

• The nature of the punishment of karet.
• Lashes as punishment and as exemption from karet.
• Lashes for one who is not legally liable to them.
• Punishment as atonement.

Summary

This week’s essay deals with the law of karet and its relation to the punishment of lashes. We cite a midrash from which it appears that one can attain atonement from karet even where there is no legal liability to lashes at all, as in Sabbath desecration, and we find echoes of this approach in halakha.

We discuss at length the controversy over semikhah in sixteenth-century Land of Israel, one of whose roots lay in this very problem. The proponents of renewed semikhah wanted to create courts that could administer lashes to transgressors, thereby atoning for them and releasing them from liabilities of karet. Maharalbach, who led the opposition to this attempt, argued against them, among other things, that only a punishment lawfully imposed, with witnesses and prior warning, can atone for karet. We clarify the precise point on which the sages of Safed disagreed with him.

From this discussion we arrive at a broader treatment of the halakhic theory of punishment and of different kinds of atonement: through sufferings, and through punishments imposed by a court—that is, formal atonement.

At the end of the essay we reach the conclusion that it is difficult to understand karet in the way Maimonides describes it—as eternal excision from the world to come. We therefore raise two possible suggestions: either this is only a theoretical punishment, or it is a temporary punishment rather than an eternal one.

On Lashes and Karet

A Look at Punishments and Atonement in Halakha

A. Introduction: The Punishment of Karet

The Punishment of Karet

In halakha (Jewish law) there are several kinds of punishments: monetary payment—compensation, fine, or ransom—various court-imposed executions, death at the hands of Heaven, karet (spiritual excision), and lashes. In this essay we will focus on karet and its relation to lashes.

Maimonides, in his Commentary on the Mishnah, in the introduction to the chapter Helek, discusses the world to come and its meaning. He speaks there of the spiritual and intellectual delight found within it, and in that context he explains karet as excision from the world to come. He describes this as well in chapter 8 of the Laws of Repentance, and mentions it briefly in the Fourteenth Principle:

This is the immense good, beyond comparison with any other good and beyond resemblance to any other delight. How can that which exists without end be compared to something perishable? This is what the Exalted One meant when He said, “that it may be well with you, and you may prolong your days,” which they received by tradition to mean: “that it may be well with you” in the world that is wholly good, and “you may prolong your days” in the world that is wholly long. The complete vengeance is that the soul be cut off and perish and have no continuance, and this is the karet mentioned in the Torah. The meaning of karet is the excision of the soul, as Scripture explained when it said, “That soul shall surely be cut off”; and the Sages said: “Cut off in this world; surely cut off in the world to come.” Scripture also says, “And the soul of my lord shall be bound in the bundle of life…” Whoever is immersed in bodily pleasures, neglects truth, and prefers falsehood is cut off from that exalted state and remains mere matter alone.

Thus, the punishment of karet is the termination of a person’s spiritual dimension, leaving him as matter alone. In practical terms, this means the denial of the world to come to that person, since the world to come is a spiritual realm and therefore cannot contain material beings. This is an eternal state, apparently without exit. We should note that some understood karet as being cut off from the people of Israel—see our essay from last week, and indeed Scripture always describes the punishment in this way: “that soul shall be cut off from its people,” or “that soul shall be cut off from Israel”—and only as a consequence of that, also as excision from the world to come.¹

Duplication in the Punishment of Karet

Halakha contains situations of overlapping punishments. For example, there are transgressions for which one is punished both with karet and with lashes. In fact, every transgression punishable by karet is also accompanied by lashes—or by death, as in the case of Sabbath desecration—as Maimonides writes in his Commentary on the Mishnah at the beginning of chapter 3 of Makkot; he also mentions this briefly in the Fourteenth Principle and in the Laws of Sanhedrin 18:1 and 19:1:

You must know these many principles that I will mention here. Among them is this: anyone who is liable only to karet or to death at the hands of Heaven, when that liability arises from a negative commandment, if the matter occurred with witnesses and prior warning, receives lashes. And if he received lashes and repented, he is exempt from karet. All those liable to karet are explicitly stated in the Torah; and among those liable to death, some are explicit in Scripture and some are only alluded to. They have all already been mentioned earlier in tractate Sanhedrin, in chapters nine and eleven.

In such cases, the question arises whether these are cumulative punishments—that is, whether a person incurs both karet and lashes, or both karet and death—or whether these are alternatives that depend on the circumstances, meaning that under some conditions the punishment is karet and under others death or lashes for the very same act. As is clear from Maimonides’ continuation there, these are different alternative punishments for the same transgression:

In such a case we do not say that a person is liable to two punishments, for once we have lashed him, he no longer bears karet or death at the hands of Heaven.

In other words, Maimonides says that there is no double liability for the same act. Only if, for some reason, he does not receive lashes does he remain liable to karet; but if he is lashed, he is released from that karet.

The point of departure for our discussion is a puzzling midrash that addresses the episode of the wood-gatherer at the end of our Torah portion. From there we will arrive at an interesting halakhic discussion connected to the controversy over renewing semikhah in Safed in the sixteenth century.

A Puzzling Midrash

In Midrash Tanchuma, Bamidbar 23, we find the following passage:

Teach us, our master: one who transgresses those prohibitions in the Torah that incur karet—by what means are they healed and released from their karet? Thus our Rabbis taught: all who are liable to karet and receive lashes are released from their karet, as it says, “then the judge shall cause him to lie down and strike him before him… forty he shall strike him, he shall not add… and your brother shall be dishonored before your eyes.” Once he has been lashed, the Torah has pity on him and says, “your brother shall be dishonored before your eyes”—he is now your brother. And why forty? Because this person was formed in forty days, and he transgressed the Torah that was given to Moses in forty days. Let him receive forty and his punishment is discharged. So too you find with Adam, the first man: when he was commanded, “but from the tree of knowledge of good and evil you shall not eat,” and he became liable to death, the world was struck with forty punishments: ten for Adam, ten for Eve, ten for the serpent, and ten for the ground. Therefore, when a person violates one of the transgressions, he receives forty.

So too you find that for each and every matter that the Holy One, blessed be He, commanded Moses, there were warnings and punishments. Concerning the Sabbath it is written, “Remember the Sabbath day”—that is the warning; and its punishment is, “Whoever profanes it shall surely be put to death.” They came to the wilderness and found a wood-gatherer, and Moses did not know by which death he was to be executed, so “they placed him under guard.” The Holy One, blessed be He, said, “The man shall surely be put to death; the whole congregation shall stone him with stones.” Immediately Moses stood in prayer and said: Master of the universe, if a person sins in this way and is stoned, they will be left in despair; make some remedy for them. The Holy One, blessed be He, said to them: let them receive forty lashes and they will be released from their karet.

So too, when Aaron’s sons died, the clan of Kehat saw this and began crying out to Moses, saying: Is this how we too shall die? The Holy One, blessed be He, said to him: just as I made a remedy for Aaron, as it is said, “With this Aaron shall come…,” so for the Kehatite family I too make a remedy so that they will not die, as it is said, “Do this for them, and they shall live and not die.” How do we know? From what the passage calls, “Do not cut off.”

The central difficulty in this midrash concerns its treatment of the wood-gatherer. It seems to imply that there is a punishment of lashes for Sabbath desecration. But halakha teaches that the punishment for intentional Sabbath desecration is death, together with karet, not lashes. In our Torah portion the Torah states explicitly that this is what God told Moses regarding the wood-gatherer: “The man shall surely be put to death.”

B. The Relation Between Liability to Karet and Liability to Lashes

Introduction

We saw above that every transgression carrying karet is also accompanied by lashes. We cited Maimonides’ statement—and the same appears in the Midrash Tanchuma we quoted—that transgressors who receive lashes are released from karet. The source is the Mishnah at the end of tractate Makkot (Babylonian Talmud, Makkot 23a):

All who are liable to karet and receive lashes are released from their karet, as it says, “and your brother shall be dishonored before your eyes”; once he has been lashed, he is your brother. These are the words of Rabbi Hananiah ben Gamliel.

The continuation of the Mishnah records no dissenting view, and this principle is indeed codified in halakha by Maimonides, Laws of Sanhedrin 17:7:

Anyone who sinned and received lashes returns to his former standing, as it says, “and your brother shall be dishonored before your eyes”: once he has been lashed, he is your brother. So too, all who are liable to karet and receive lashes are released from their karet.

Thus there are two principles here:

1. After receiving lashes, the transgressor returns to full legal standing; he is no longer regarded as a sinner.
2. He is released from the punishment of karet that had been hanging over him.

A First Difficulty: What Characterizes Transgressions Punishable by Karet?

An implicit assumption here is that there are transgressions whose punishment is karet, and yet, if one is lashed, he is released from karet. In such cases karet is a conditional punishment, since if the offender receives lashes, karet no longer applies.

This is already puzzling. If the offense truly deserves karet, why should lashes exempt him from it? Not every transgression is punished with karet. There must therefore be something distinctive about these transgressions that warrants karet, unlike those for which one receives only lashes. If so, why should lashes release him from that special liability to karet? And if lashes do indeed release him from it, why define karet at all as a kind of conditional punishment? The Torah could simply have established from the outset that the punishment for these transgressions too is lashes.

In halakha, karet is understood to be more severe than lashes. For transgressions whose intentional commission incurs karet, inadvertent commission requires a sin offering; for transgressions whose intentional commission incurs only lashes, inadvertent commission does not require such an offering. We find a parallel distinction with regard to repentance as well. Thus Maimonides writes, Laws of Repentance 1:4:

If one transgressed a negative commandment that does not carry karet or court-imposed death, and he repented, repentance holds the matter in abeyance and Yom Kippur atones; concerning these it is said, “For on this day He shall atone for you.” If one transgressed offenses punishable by karet or by court-imposed death and repented, repentance and Yom Kippur hold the matter in abeyance, and the sufferings that come upon him complete his atonement. He never receives full atonement until sufferings come upon him. Concerning these it is said, “I will visit their transgression with the rod, and their iniquity with plagues.”

Thus, offenses punishable only by lashes are erased by repentance alone, whereas offenses punishable by karet also require purification through sufferings.

This sharpens our earlier difficulty: how can offenses carrying the more severe punishment be atoned for by the lighter punishment of lashes? And if lashes are sufficient, why does the Torah define these offenses from the outset as carrying karet?

An Additional Difficulty: Why Discuss the Punishment of Karet at All?

Karet is anomalous in relation to the Torah’s other punishments, apart from death at the hands of Heaven. It is a punishment administered by the heavenly court. Yet there are many talmudic discussions devoted to the question whether a person is liable to karet for this or that transgression. This is puzzling: why not leave such determinations to the heavenly court? What practical halakhic consequence does this question have for us?

Indeed, in a number of places commentators remark that these discussions have no practical implication and therefore need not occupy us. For example, Kesef Mishneh on Laws of Leavened and Unleavened Bread 1:6 writes:

Moreover, it is his way in several places that once he finds Maimonides’ view aligned with the Halakhot, he does not delve further into explaining the Talmudic sugya. And although he does not agree with the Rif except with regard to lashes, not with regard to karet, since no practical consequence emerges for action, he does not concern himself further.

The same is found elsewhere as well; see also Lechem Mishneh, Laws of the Offering Procedure 18:14, s.v. “One who stole and consecrated,” and elsewhere.

Still, it is difficult to ignore the intensive treatment of karet in contexts that are wholly halakhic.²

The Dispute Between Maimonides and Halakhot Gedolot in the Fourteenth Principle: Counting the Cases of Karet

An interesting expression of this difficulty appears in Maimonides’ Fourteenth Principle, where he discusses whether punishments should be counted as commandments in their own right—for example, whether one should count the prohibition against labor on the Sabbath and separately count the obligation to execute one who intentionally desecrates the Sabbath. He argues that punishments should not be counted separately; they are included as details within the commandments themselves.

Beyond that dispute with Halakhot Gedolot, which concerns the very nature of punishments in the Torah, there is another disagreement between them over whether each distinct liability to death should be counted separately. Maimonides concludes from both disputes as follows:

Others have become confused regarding this principle, in a confusion that does not even require an answer, and yet is not easy to answer because of the depth of the confusion… Nothing remains except that they surely think that the establishment of prohibitory boundaries is first itself a negative commandment; but if so, how can they count among them the punishment and that for which the punishment is incurred?

According to Halakhot Gedolot, punishments are not details within the commandment for which they are imposed, but obligations imposed on the court. Maimonides, by contrast, sees the punishment as one detail among the details of the commandment imposed on the individual. There is an obligation to observe the Sabbath, and as part of that commandment there is also a liability of punishment upon the individual who violated it. Everything is ultimately an obligation on the individual; the court merely carries out the punishment. According to Halakhot Gedolot, however, the obligation to observe the Sabbath is indeed upon the individual, but the obligation to punish transgressors is a different obligation resting on the court. Therefore it is counted as a separate commandment. The final sentence of the passage we quoted shows that Maimonides himself understood this to be the point at issue between them.

Later in the discussion another point arises, concerning punishments of karet and death at the hands of Heaven:

Even more difficult than this is that he counted those liable to karet and those liable to death at the hands of Heaven among the negative commandments. For they think that the liability to karet, the thing for which karet is incurred, and the punishment attached to it—that itself is the numbered commandment. So much so that the author of the Book of the Commandments spoke of this and said in the first section, when explaining what that section contains: “Among it are thirty-two matters through which He, may He be exalted, informed us that He will deal with them, not we; He is guarantor for them all.” By “among it” he means among the matters included in that section. And the thirty-two matters are twenty-three cases of karet alone and nine cases of death at the hands of Heaven, as he counted them. By “He is guarantor for them all” he means that He, may He be exalted, guarantees that He will cut off this one and kill that one. There is no doubt that this person does not hold that all 613 commandments are obligations upon us. Rather, some are obligations upon us to fulfill, and some are obligations upon Him, may He be exalted, to fulfill—as he said and explained, that He will deal with them, not we. This, God knows, is in my view utter intellectual confusion, and should not be spoken of at all, for these are statements whose corruption is obvious.

It seems that this dispute too is closely tied to the previous one. We saw above that according to Maimonides the liability to punishment is imposed on the individual, not on the court, whereas according to Halakhot Gedolot the obligation rests on the court. Now Halakhot Gedolot continues and claims that one should count punishments for all commandments that carry karet and death at the hands of Heaven. Maimonides is astonished: what sense is there in counting commandments that are addressed to the Holy One, blessed be He? Is the enumeration of commandments intended for Him? Halakhot Gedolot apparently holds that these are commandments imposed on the court: the court is forbidden to punish one who is liable to karet or death at the hands of Heaven, and must leave his judgment to Heaven. In other words, this is a specific negative commandment—not a positive one—not to punish one who is liable to karet or death at the hands of Heaven. Maimonides, who sees punishments as obligations attached to the individual, sees no logic in counting punishments of karet, for from the individual’s standpoint they have no direct meaning.

Thus, according to Maimonides, there is no point in discussing cases of karet at all—and this is indeed what his commentators write, as cited in the previous section. But according to Halakhot Gedolot, it is certainly important to clarify the punishments of karet, since this has halakhic consequences.³

Lashes Neutralize Liability to Karet

If we reconsider the Midrash Tanchuma cited above, we find a somewhat different relation there between lashes and karet. The lashes are not a substitute for karet, and karet is not merely what applies in default when one was not lashed. Rather, every offender in these cases bears liability to karet, but the Torah says that if he has already received lashes, those lashes atone for his karet. Thus the midrash says:

Teach us, our master: one who transgresses those prohibitions in the Torah that incur karet—by what means are they healed and released from their karet? Thus our Rabbis taught: all who are liable to karet and receive lashes are released from their karet, as it says… “and your brother shall be dishonored before your eyes.” Once he has been lashed, the Torah has pity on him and says, “and your brother shall be dishonored before your eyes”—he is now your brother.

It is clear from this that the lashes are not an alternative punishment. Rather, if he has been lashed, he is released from karet. This is presented as a kind of mercy beyond the strict measure of the law, and the continuation of the midrash presents it that way as well: Moses asks that some outlet be provided for those liable to karet, so that they not be left in despair.

An Implication for Sabbath Desecration

In the second part of the midrash we see a very interesting implication of precisely this point. As noted, the midrash seems to say that there is a punishment of lashes for Sabbath desecration, but this is highly puzzling, since the Torah explicitly states that the punishment for Sabbath desecration is death.

In light of our analysis, a different interpretation of the midrash suggests itself. There is indeed no legal punishment of lashes for Sabbath desecration. But if a person is lashed, even though he is not legally liable to lashes for that transgression, he is nevertheless released from karet. What releases him from karet is not obligatory judicial lashes, but lashes as such. In other words, Sabbath desecration does not carry lashes as its legal punishment. And yet, if one is lashed, he is released from karet, because there is a general principle that lashes can function in place of karet. Here the lashes are not imposed as punishment, since there is no legal liability to lashes for Sabbath desecration. They are imposed in order to neutralize the punishment of karet.

Resolving the Earlier Difficulties

The midrash suggests that there is something in karet that drives people to despair, apparently because of its endlessness. Karet severs a person from the people of Israel—see our essay from last week—forever; if a person remains under liability to karet, he carries a sentence that will never naturally expire. His condition appears hopeless. To address this, the Torah introduced a new track: he may be lashed and thereby be released from karet. This innovation does not mean that lashes are equivalent to karet on the level of punishment, since karet is more severe. Rather, they point to a route by which the person can return to “his people,” or at least avoid being cut off from them.

The fact that the Torah assigns karet to certain transgressions stems from the reality that one who commits them does indeed deserve karet. He ought to be severed from his people. The track of lashes in this context is therefore not itself a punishment, but an act of atonement that rescues the person from a hopeless state.

Accordingly, there is no difficulty in why the Torah did not simply establish lashes directly as the punishment for these offenses. It wanted to tell us that these are transgressions that warrant severance from the collective of Israel. At the same time, it allows an avenue of escape from that condition. Nor is it difficult any longer that lashes should take the place of a more severe punishment, since we are not dealing here with punishment but with a route of rescue.

This picture may also explain why there is a halakhic reason to discuss whether a given act incurs karet even according to Maimonides. We need to know whether karet applies in order to know whether the person should be lashed to release him from it.

A Note: Two Distinct Functions of Lashes Where Karet Is Also Present

In several talmudic discussions, the Gemara disconnects liability to karet from liability to lashes, and determines that under certain circumstances a person committed an offense that ordinarily carries both lashes and karet, but in that case he is exempt from karet while still liable to lashes. For example, Kesef Mishneh on Laws of Disqualified Consecrated Animals 18:12, s.v. “But a person,” writes that for impurity of sacrificial flesh in the Temple one incurs lashes but not karet. Likewise, Kesef Mishneh on Laws of Entry into the Sanctuary 3:18, s.v. “And similarly one who is impure,” discusses the view that partial entry counts as entry, according to Resh Lakish, for purposes of karet but not for purposes of lashes.

At first glance, this indicates that the duplication is not complete. Sometimes the lashes are not a substitute for karet, but an independent punishment. In circumstances where the same offense that ordinarily carries karet is punished with lashes and no karet, the lashes are not substituting for karet but function as punishment in their own right.

The conclusion is that lashes that accompany karet have two aspects: they provide a route that releases from karet, and at least in some lighter circumstances they also function as punishment for the offense itself in place of karet.

Another Note on the View of Halakhot Gedolot

At first sight the view of Halakhot Gedolot, as described above, is highly puzzling. We saw that according to it there is a prohibition against punishing one who is liable to karet, and one must leave his judgment to Heaven. But as we have also seen, a court certainly does punish one who is liable to karet. Every liability to karet is accompanied by lashes, and the lashing releases him from karet. In other words, the court does in fact remove the person’s heavenly punishment and does not leave him entirely to Heaven. How can this be reconciled with the notion that it is forbidden to punish one who is liable to karet?

Perhaps the view of Halakhot Gedolot is that one may not punish the offender instead of karet. The lashes he receives release him from karet, but are not themselves punishment in that sense. A punishment that would not release him from karet is forbidden to impose upon him. Even so, this remains difficult, especially in light of the fact that in quite a number of commandments we find lashes functioning also as punishment and not only as a route of exemption from karet. Still, as we saw, such a situation appears only when karet is not actually imposed in practice, as in partial entry and similar cases. According to this, when the offense is not carrying karet in practice, the lashes are punishment; but when it is carrying karet, the lashes are not punishment at all, but only a route of exemption, as we have seen. One can administer lashes to release from karet even where there is no legal liability to lashes at all, such as offenses that carry karet and death. These two different aspects of lashes appear in two different kinds of circumstances.

In Our Time

The picture we have described so far raises difficult questions regarding our own time. Today, when we have no ordained courts able to administer lashes, our liabilities to karet remain in place. The route that neutralizes this endless punishment is unavailable to us, and all this for merely technical reasons. That seems unjust, and it is hard to believe that Heaven would in fact leave us with no way out.

In light of the midrash we cited, perhaps there is also a possible solution in our time. One can lash a person even if he is not legally liable to lashes, just as the midrash speaks of lashing one who desecrated the Sabbath, and thereby rescue him from the karet to which he is liable. It is possible that lashes administered today by a court lacking formal authority can also save a person from karet. We know of such customs in Jewish communities—especially around the High Holy Days—where people ask to be lashed in order to be released from liabilities of karet and lashes. And indeed we find that major decisors in the fifteenth century disagreed on this matter, and in the next section we will explain this a bit further.

C. The Problem of Karet as One of the Foundations of the Semikhah Controversy

The Semikhah Controversy

Many people are unaware that this question stood at the center of the controversy over semikhah (rabbinic ordination conferring judicial authority) in sixteenth-century Land of Israel. As is well known, at that time several of the greatest Torah sages of Safed—among the greatest scholars in the Jewish world—appointed Rabbi Yaakov Beirav, the greatest among them, to be ordained and thereby qualified to judge. They relied on Maimonides’ innovation in his Commentary on the Mishnah at the beginning of tractate Sanhedrin and also in his Laws of Sanhedrin,⁴ where he rules that if all the sages of Land of Israel agree, they can renew the chain of semikhah and ordain a person even without an already ordained sage among the ordainers.

This process of semikhah aroused a sharp and far-reaching controversy in the halakhic world, especially between the sages of Jerusalem, led by Maharalbach, and Rabbi Yaakov Beirav together with the sages of Safed. As noted, the sages of Safed ordained Rabbi Yaakov Beirav, and the semikhah process continued for several generations after the controversy before eventually fading away.

Semikhah as a Solution to the Problem of Karet

In Maharalbach’s description of the matter, the motivations for renewing semikhah are set out as follows, in the passage beginning “The text of the letter”:

Now that the Torahs have been transgressed and the statute altered, the wrath of the Lord has burned against His people, and breach has followed breach. There is no king and no prince, no mighty man and no warrior in the battle of Torah. The wise craftsmen and discerning whisperers have perished. We have withered away in our iniquity, for it is great. The people of the Lord are scattered and dispersed. We have all strayed like sheep; each has turned to his own way. Our iniquities have risen above our heads. Day by day the crown has fallen from our head, our consecration has been profaned to the ground. There is no longer a prophet, no teacher of righteousness, and among us no one to judge cases of fines, to show the wicked his defect. And so, when a man is moved to return to the Lord, he says in his heart: why should I labor in vain? What gain is there if I fast, go about in gloom, and receive forty lashes and no more, if this cannot release me from my karet, while my sin is always before me and my disgrace is not erased?

This became for our people a stumbling stone and a rock of offense, preventing them from returning to the Lord, holding fast to folly and waywardness, and locking the gates of repentance.

They describe a situation in which sinners tell themselves that there is no point in fasting and repenting, since they cannot free themselves from their liabilities of karet. Their sin therefore remains ever before them and their disgrace is not erased. The sages of Safed therefore arose and wished to renew semikhah so that they could administer lashes to those liable and thereby release them from karet, giving them renewed motivation to repent:

Who is the man, and where is he, who would bear the name Israel and rely upon the God of Israel, saying “I am the Lord’s,” and remain unmoved by this matter, without tears descending from his eyes as the people of the Lord have descended to the gates?… Therefore, because of all the words of this letter, we arose and strengthened ourselves—we, the least of the flock upon the holy land—to be zealous for the honor of God. For how can His name be profaned? There is none who calls in righteousness, none who returns to the Lord with all his heart, none who is judged faithfully. And we said one to another: be strong, and let us strengthen ourselves for our people and for the cities of our God, and let us raise the banner of Torah, which has long been cast to the ground and trampled in the streets.

Therefore we chose the greatest among us in wisdom and number, the perfect sage, the great rabbi, our master Rabbi Beirav, that he should be ordained and be head of the academy and be called rabbi. He, in turn, would ordain the wisest among us beside him, and they too would be called rabbis and remain ordained forever, administering the judgments of the Torah in truth and uprightness. And when the wicked man who deserves lashes is brought before them, they will strike him according to the Torah, as much as he can bear, and he will be released from his karet and draw near to the eternal God. Then all this people as well shall come to its place in peace.

Thus, among other things, the renewal of semikhah was intended to solve the problem of those liable to karet and thereby restore motivation for repentance.⁵

Maharalbach’s Response

In his reply, Maharalbach discusses Maimonides’ innovation about the possibility of renewing semikhah from several angles. He rejects the very possibility of renewing semikhah for several reasons. But within that discussion he also adds that even if such renewal were possible, it still would not solve the problem for the sake of which the sages of Safed wished to do it. Thus he writes, in the passage beginning “However, it appears”:

However, it appears to my humble understanding, both in explaining that it is impossible to attain the important goal that the sages of Safed thought to attain by means of that agreement, and in the essential law itself, as follows. It is certainly true and right that the awakening of the sages of Safed to attain that important goal for the sake of which that agreement was made is exceedingly beautiful and good in the glory of the God of Israel. It demonstrates the intense longing of those moved by it to cleave to His blessed love and fear and to raise His Torah upon His holy land. They will certainly have great reward and be like a well-watered garden. But as it appears to us, their agreement will not help them attain their purpose and the holy fruit of their thought, for the very root of the law is flawed, and the hearer will say: what kind of semikhah is this, and why did they do such a thing?

His meaning, of course, is that semikhah is of no use in solving the problem of karet. Here we will focus mainly on what he wrote regarding this issue. He continues:

What we learned in the Mishnah, “All who are liable to karet and receive lashes are released from their karet,” and what it derives from the verse that says, “and your brother shall be dishonored”—once he has been lashed he is your brother—applies only when they warned them at the time of the transgression regarding lashes, and afterward he was lashed in court. Without warning there are no lashes by a court; and if the lashes are not by a court, there is no release from karet by means of those lashes. For the verse says “and your brother shall be dishonored” with reference to lashes administered by a court. So it is explicitly written in the Rif’s Halakhot and in Nimukei Yosef. This is his language: “All who are liable to karet—if they were warned concerning lashes because of the prohibition written there, and they were lashed—are released from karet.” Rashi did not need to elaborate on this there, because that entire chapter concludes in this manner, and it is obvious that there are no lashes without witnesses and prior warning. But in the first chapter of tractate Megillah they wrote it explicitly and clearly: “All who are liable to karet and receive lashes”—that is, where witnesses warned them concerning the prohibition that is accompanied by karet, and they were lashed in court—“are released from their karet”; afterward the heavenly court no longer exacts punishment. It follows that the goal for which that agreement was established cannot be attained through it.

His main argument is that only lashes administered as a legally required punishment by a court can release a person from the karet to which he is liable. Therefore, in transgressions not committed with witnesses and prior warning, where there is no court-imposed liability to lashes, there is no possibility of administering lashes and thereby releasing the person from karet. He infers this from the language of Nimukei Yosef in Makkot and Megillah.

In other words, his main claim is that in order for lashes to release the offender from karet, the lashes must themselves be legally obligatory. For lashes to be administered as a halakhic punishment, all the conditions required by halakha must be satisfied: witnesses, prior warning, and an ordained court. Therefore, even if the sages of Safed are right and their semikhah has validity—something Maharalbach himself denies—still, the transgressors in question did not commit their offenses with witnesses and warning. For it is unlikely that offenders would sin openly before witnesses and after prior warning, and only afterward seek repentance in order to escape the karet they incurred. Usually the issue concerns people who committed transgressions carrying karet and want release from it, but did not fulfill the conditions required for lashes.

Maharalbach is of course assuming here that these conditions are not required for liability to karet itself, but only for liability to lashes. One who committed such an offense without witnesses or warning is still liable to karet and therefore has a problem, but he is not liable to lashes and therefore his problem cannot be solved through judicial flogging.

In the end he concludes, in the passage beginning “Even in this”:

In any event, even according to the plain meaning that appears, the matter is clear with respect to the case before us: that the said agreement does not help attain that important goal that the sages of Safed, may it be rebuilt and established, thought to attain through it. And even so, the penitent should not be distressed by this, nor despair of the forgiveness of his sin, for even without lashes by a court his sin can be atoned for, and he may rise to a level higher than that of the completely righteous through repentance, if he strives to fulfill all its essentials. For the prophet, peace be upon him, promised us: “Return, O Israel, to the Lord your God”… and the received tradition applies this even to one who denied the very foundation. And not only through sufferings, but even without sufferings, if he fulfills what Solomon, peace be upon him, said, “By kindness and truth iniquity is atoned,” in the manner explained by the pious Rabbi Yonah in his Shaarei Teshuvah at the end of the first gate.

This is somewhat puzzling, since in the Sages and in Maimonides it is ruled that for certain transgressions repentance alone is not sufficient, and sufferings and court punishments are also required. Perhaps Maharalbach means that when we have no possibility of court-administered lashes, God surely does not make atonement depend on that, and instead increases the measure of sufferings so as to rescue us from the sentence of karet.

Maharalbach’s Reasoning

Maharalbach devotes much space to clarifying this sugya and divides it into several stages. In the first stage he discusses whether a court may at all administer lashes to someone who comes before them and asks to be lashed. He summarizes that stage as follows, in the passage beginning “The sum of the matter”:

The sum of the matter is that Torah lashes—the kind that, together with repentance, release from karet—may be so severe that the one struck could die from them. A court has no power to administer those lashes to any person unless he transgressed with witnesses and prior warning, even if the transgressor comes before the court pleading with them to lash him, just as according to everyone they have no power to execute any person who committed an offense carrying death unless they warned him, even if the offender comes before them pleading for this as atonement for his sin.

In other words, he concludes that a court has no authority to lash someone merely because he comes and asks for it. There is a prohibition of causing bodily injury, along with other problems.

Afterward he continues, in the passage beginning “I say further”:

I say further that even if the law were that a court may administer Torah lashes to a transgressor without witnesses and prior warning when the offender comes before them pleading that they lash him as atonement for his sin, nevertheless he is not released from karet by those lashes, even if he repented. And even in a transgression that does not carry karet, he is not released from the heavenly punishment attached to that transgression by those lashes. For the verse says specifically, “and your brother shall be dishonored”—once he is dishonored, he is your brother—meaning those lashes mentioned there, not some other lashes.

Here he argues that even if we were to say that a court does have authority to lash someone who comes and requests it, this still would not release him from karet, or indeed from heavenly punishments generally. In his view, only a punishment lawfully administered to one who is actually liable to it, and which the court itself is obligated to impose, can release him from karet. He proves this from close readings of several passages in the Sages and in the medieval authorities, though this is not the place to review them in detail.

The Relation to the Midrash Tanchuma Above: Two Conceptions of Lashes as Release from Karet

These statements of Maharalbach stand in tension with what seems to emerge from the midrash we cited at the beginning of our discussion. There we saw that lashing releases from karet even for transgressions that do not carry lashes at all, such as Sabbath desecration. If so, then it is highly likely—and indeed a fortiori—that in offenses which do carry lashes, where the Torah itself has already defined lashes as a route of release from karet, lashes should also be effective in circumstances where there is no formal liability to lashes, such as when there were no witnesses or no prior warning. If so, the sages of Safed, who disagreed with Maharalbach, apparently understood the matter in line with this midrash.

It appears that the core issue depends on the nature of this alternative. According to Maharalbach, lashes constitute an alternative form of atonement, and therefore this applies only where lashes are a punishment legally required by law. By contrast, the midrash suggests a conception according to which the suffering and pain involved in lashes are what bring atonement, and therefore this can be done even where there is no formal halakhic liability to lashes.

Indeed, later in his discussion Maharalbach himself cites a passage from Orchot Chaim—which attributes the same idea to the Ramah—in which the second conception is stated explicitly, in the passage beginning “And I saw in the book Orchot Chaim”:

I saw in the book Orchot Chaim that he wrote concerning lashes things which, according to their plain meaning, contradict what I wrote. Nevertheless, even according to his words, that agreement which the sages of Safed agreed upon is of no use at all, and the goal attained through it could also be attained without it. This is his language: “Lashes certainly atone together with repentance and confession, for in the case of those liable to lashes, lashes occupy the same place that death occupies for those liable to execution, and death never atones except together with confession. Thus the Sages said: all who are executed confess, for everyone who confesses has a share in the world to come. And if you ask why repentance was not mentioned together with confession, that is because one standing at the place of stoning and going to die has no further time to sin, and need only say, ‘I have acted perversely; I will do so no more.’ But one liable to lashes requires repentance. And although lashes do not atone except together with confession and repentance, it is impossible that they should not lighten the punishment for that sin because of the pain he suffered, which is part of the punishment he incurred from Heaven. And there is no difference in this matter between whether he was lashed in court or not in court, except that if he became legally liable to lashes in court, they lash him against his will; whereas if he committed the transgression without witnesses and prior warning and wished of his own accord to be lashed in order to lighten the punishment of that sin, a blessing should come upon him. And if he does not wish it, they do not compel him.” Thus the Ramah wrote in a responsum.

Later on, Maharalbach even interprets these words as meaning essentially what he himself says. But his point in citing this passage is that even according to Orchot Chaim, there was no need for renewed semikhah. That is, even on that view, the sages of Safed were still mistaken. The reason is that, if one takes these words at face value, any lashes that produce comparable pain would atone for karet, even if the one administering them is not ordained and does not act by the authority of a court. Therefore, even if the correct conception is indeed that of our midrash, this still has no bearing on the need to renew semikhah.

Explaining Maharalbach’s View: Why Do Only Lawfully Administered Lashes Replace Karet?

In his responsum, Maharalbach addresses the difficulty in the view that only lashes administered in accordance with the law atone for karet. He writes, in the passage beginning “I say further”:

And if you say: since the blows of lashes are equally severe in this case and in that case, what difference is there between them?

He answers:

It is not so; rather, there is a great difference. For the Torah said, “then the judge shall cause him to lie down and strike him,” and this is not comparable to a case where he comes to the court and casts himself before them and asks them to lash him. Proof of this comes from what the Sages said in Babylonian Talmud, Ta’anit 16a, in the chapter “How Is the Order of Fast Days?” concerning the Mishnah: “They place ashes from the furnace upon the ark, upon the head of the nasi, and upon the head of the head of the court, and each person places it upon his own head.” The Gemara asks: let the nasi and the head of the court take it themselves and place it upon their own heads; why should another person take it and place it on them? Rabbi Abba of Caesarea said: one who is ashamed by himself is not comparable to one who is shamed by others.

Maharalbach explains that a punishment administered by a court is more humiliating, for one who shames himself is not like one who is shamed by others. He proves this from the laws of communal fasts, where ashes are placed on the heads of the nasi and the head of the court by someone else, rather than being placed there by themselves. He then adduces further sources.

Difficulties with This Explanation

His basic assumption is that the atonement produced by lashes derives from the intensity of the shame and pain involved in them. Lashes are nothing more than a kind of suffering that atones. But this assumption is difficult. We could give a person fifty lashes, or torment him before the entire public in a court lacking formal authority, and thereby put him through the full measure of suffering required for atonement. It is hard to believe that the parameter determining atonement is the degree of shame and suffering, for if that were so it is not clear why specifically a punishment administered according to law would be required.

A further difficulty is that not all the factors required by halakha are factors relevant to the intensity of the pain or shame involved in the punishment. For example, why are witnesses and prior warning required in order for lashes to atone in place of karet? Does the presence of witnesses or prior warning affect the severity of the punishment?⁶ Does the fact that the judges are ordained produce greater pain or greater shame? Why should a court of our own day not be able to lash a person against his will in order to atone for him from karet, even if it lacks formal ordination? In such a case, after all, the humiliation would be complete, since the offender himself did not request it, but the court lashed him. It therefore seems that all these are formal legal requirements and not conditions affecting the punishment’s severity.

Another difficulty concerns the very comparison between lashes and karet. If the basis for exemption from karet is indeed the degree of suffering, then there ought to be some equivalence between these punishments. The lashes should in some way correspond to the punishment of karet. But if karet really is an eternal punishment in which a person loses his world to come, it is not clear how a flogging of thirty-nine lashes could release him from such a fate. Can such a flogging truly be equivalent to so dreadful a punishment?

Nor is it clear why one who sinned without witnesses and prior warning should have to endure an eternal punishment of excision from the world to come, while his fellow who sinned with witnesses and warning receives the privilege of escaping karet. Why should that privilege be denied to one who sinned in private?

Conclusion: Formal Atonement

What, then, can explain the view of those medieval authorities cited by Maharalbach who maintain that only a punishment lawfully administered can atone for karet? It appears that a court-imposed punishment, precisely as such, possesses halakhic power to atone. The atonement of punishment does not necessarily function in the same way as ordinary sufferings. The very fact that what takes place here is an act of halakhic atonement is what atones, and it has no substitute in the form of other sufferings, even if those sufferings are more intense. Therefore, when we have no courts, or when the conditions required for lashes as punishment were not fulfilled, there is no other way to achieve atonement through this mechanism.

At the same time, in our era, when we have no ordained courts and no punishment of lashes, Maharalbach writes that a person is atoned for through repentance even without lashes. That itself raises a difficulty. If lashes are indeed required as formal atonement, how can liability to karet be erased when there are no lashes?

It seems that these requirements were stated only with respect to cases in which an earthly court seeks to erase liability to karet. The heavenly court, however, is not bound by these rules, and can certainly erase liabilities of karet even through repentance alone. Presumably that is what occurs when there is no possibility of receiving lashes and attaining atonement through them.

The View of the Sages of Safed

The sages of Safed seem to have held a mixed position. On the one hand, it is clear that they believed only lashes administered by an ordained court can erase karet—that, after all, was the very reason they wanted to renew semikhah. On the other hand, in their view one can atone for karet even through lashes not lawfully mandated, since they wished to apply this to transgressors who had sinned without witnesses and would come voluntarily to request lashes. What is the difference between these two requirements? Why must the halakhic conditions regarding the nature and standing of the court be met, while the conditions regarding the transgression and the lashes need not be?

On their view, it is nevertheless clear that we are dealing with formal atonement. On the one hand, whenever there is liability to karet, one may administer lashes and thereby atone. On the other hand, only an ordained court can do this, because only lashes that carry the status of halakhic punishment can atone for karet.

The Halakhic Theory of Punishment

As M. Avraham showed in his article, “He Gives the Wicked Evil According to His Wickedness—Really?” in Alon Shevut – Bogrim 9, the ranking of punishments in other areas too is not determined by the degree of pain or shame involved. That article discusses the view of the author of Sefer Hasidim, according to which the intensity of the punishment is not necessarily proportional to the severity of the offense. Atonement depends on the kind of transgression, not only on its degree of severity, and on the kind of punishment, not only on its intensity.

Underlying this is a conception according to which, in halakha, the purpose of punishment is atonement—not deterrence, not retribution, and not other legal conceptions of the functions and goals of punishment.

Here we see a further innovation in the same direction: the atonement that punishment brings about is not simply the result of suffering, pain, or shame. It is a different kind of atonement, arising from the very fact that the person was punished with punishments of the court. “Sufferings atone” is a mechanism different from the atonement achieved by court-imposed punishments, even though punishments too involve suffering. In other words, suffering is a relevant factor, but not the only one.

Karet: A Renewed Perspective

We thus arrive at a formalistic picture of the relation between lashes and karet. Lashes are a formal exemption from karet, despite the lack of any equivalence between the two punishments.

And yet, even if one is satisfied with a formal description, the accompanying difficulty remains hard to ignore. How can thirty-nine lashes release a person from eternal karet in the world to come? And why should one who sinned in private be denied that privilege? Formalism does not provide an adequate answer to these questions.

To bring the matter somewhat closer to reason, two possible directions may be suggested:⁷

1. Karet is only a theoretical punishment. In the end, it is simply a declaration of what ought to apply to one who committed those grave offenses—something like the way the Sages explain “an eye for an eye” as monetary payment. In practice, the person is released from karet by other means. For example, in our time, when we have no ordained courts, the heavenly court releases a person from karet in other ways, through sufferings and the like. If so, it is possible that even when courts existed, the heavenly court handled all those who had not been dealt with by the earthly court, removing their karet by other means.
2. Maimonides’ description of karet is incomplete. It is not an eternal excision from the world to come, but a temporary state. Several authors have indeed written this.⁷

A Note: A Novel View

The author of Kli Chemda on our Torah portion, at the end of section 4, cites in the name of the glossator to Mishneh LaMelekh on Maimonides, Laws of Sanhedrin chapter 16, a completely opposite view. According to that opinion, lashes release from karet only in cases where there is no legal liability to lashes. Where there is legal liability to lashes, they do not release from karet.

This view resolves many of the difficulties we raised here. The problem is that it does not seem to stand up to the sources. See Chatam Sofer, Orach Chayim 175, who challenges it from an explicit passage in tractate Megillah, and Kli Chemda there proposes a resolution. In any case, this is a lone opinion, and it is clear that it is not the approach of most commentators. Therefore, at least according to those other views, we must still clarify the questions raised above.

Footnotes