A Look at the Prohibition of Incitement – Parashat Re’eh

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A Look at the Prohibition of Incitement

Michael Abraham*

The Section on the Inciter

In our Torah portion two sections appear that deal with related subjects: the section of the inciter and the section of the city led astray. These are the verses that deal with the inciter (Deut. 13:7–12):

If your brother, the son of your mother, or your son or your daughter, or the wife of your bosom, or your closest friend, secretly entices you, saying, “Let us go and worship other gods,” whom neither you nor your fathers have known, from among the gods of the peoples around you, whether near you or far from you, from one end of the earth to the other—do not consent to him and do not listen to him; your eye shall not pity him, nor shall you spare him, nor shall you conceal him. Rather, you shall surely kill him; your hand shall be first against him to put him to death, and afterward the hand of all the people. You shall stone him with stones and he shall die, because he sought to turn you away from the Lord your God, who brought you out of the land of Egypt, out of the house of bondage. And all Israel shall hear and fear, and they shall not again do such an evil thing in your midst.

These verses deal only with incitement to idolatry, and not with other transgressions. The halakhic decisors, too, imply that the law of incitement applies only to the offense of idolatry and not to other transgressions. If so, according to Jewish law there is no general prohibition against inciting a person to sin. True, the inciter may be considered a wrongdoer, since this is more severe than one who failed to prevent his fellow from sinning (which is itself prohibited under Jewish law: “You shall surely rebuke your fellow,” “Do not stand idly by the blood of your fellow”), but there is no prohibition on the incitement itself. Certainly the inciter is not regarded as responsible, even partially, for the offense committed by his fellow. By contrast, in most legal systems, incitement to commit an offense is itself a criminal offense (solicitation). Here I will try to identify a halakhic source for a prohibition of incitement.

Incitement in the City Led Astray

In the section of the city led astray, which appears immediately afterward, those who incited the townspeople are likewise sentenced to death. This is of course another aspect of incitement, and again it concerns incitement to idolatry alone. An interesting discussion appears in Atvan DeOraita, by Rabbi Yosef Engel, sec. 20. There he discusses whether, when the Torah imposes a prohibition on an act that Reuven performs upon Shimon, that same prohibition would apply when Shimon does it to himself. One of the examples brought there is the city led astray. After proving that there is a prohibition both on the inciter and on the one enticed (=the worshipper), he asks why, if there were no inciters and the townspeople worshipped idols on their own, they are not liable for both prohibitions: inciter and enticed. After all, they incited themselves. In my view, this discussion rests on a mistaken assumption: there is no such thing as a person inciting himself, and the explanation is a logical one. In a situation of incitement, the inciter thinks the offense should be committed and the one enticed does not. The inciter then comes and tries to cause the other person to commit it. In a situation where a person incites himself, the inciter thinks the offense should be committed, but then there is no need for incitement (for the person enticed is the inciter himself, and he already thinks on his own that it should be done). And if the one enticed does not think of committing the offense, how exactly does he incite himself to commit it? The conclusion is that when a person worships idols without incitement, this is not a case of self-incitement. It is simply worship without any incitement at all. Therefore, in such a case the worshipper is liable only as a worshipper (and not, of course, as one who was enticed), and not as an inciter.

This analysis sharpens the meaning of incitement: a person who thinks an offense should be committed tries to cause another person (who on his own would not think of doing it) to do so. Incitement is an act wholly detached from the act of transgression itself, and therefore it should be seen as an offense in its own right. Admittedly, one might have understood it either as responsibility (or contributory guilt) for the transgression committed, or as an independent offense. If it is responsibility for the transgression that was committed, it is unclear why incitement is not defined as an independent offense for all transgressions. After all, you bear responsibility for the offense that was committed. If, however, it is an independent offense, one can say that incitement to idolatry is more severe, and therefore only it was prohibited.

“No plea is entered on behalf of an inciter”

The Gemara in Sanhedrin 29a discusses the arguments that judges advance on behalf of litigants in criminal and civil proceedings. Among other things, the rule concerning pleading on behalf of an inciter appears there:

And in capital cases, although he did not make the claim, we make the claim for him; but we do not make claims on behalf of an inciter. Why is an inciter different? Rabbi Hama bar Hanina said: I heard it from Rabbi Hiyya bar Abba’s lecture: An inciter is different, for the Merciful One said, “You shall not spare him, nor shall you conceal him.” Rabbi Shmuel bar Nahman said in the name of Rabbi Yonatan: From where do we know that we do not make claims on behalf of an inciter? From the primordial serpent. For Rabbi Simlai said: The serpent had many arguments it could have advanced and did not advance them. And why did the Holy One, blessed be He, not advance them on its behalf? Because it did not advance them itself.

We learn from the serpent that one charged with the offense of incitement is not afforded arguments in his favor, since the Torah commands that we are not to pity or show compassion to him. The Gemara then asks what could have been argued in his favor at all: “What could he have said?” And it answers: “When the words of the master and the words of the disciple conflict, to whose words does one listen? One listens to the words of the master.” The one enticed is an adult and bears legal and halakhic responsibility, and therefore he alone is guilty of the offenses he committed. The inciter can therefore argue that the one enticed should have listened to the voice of the “Master” (=the Holy One, blessed be He) and not to the voice of the “disciple” (=the inciter himself). It follows from the Gemara that an inciter to idolatry who raises this argument on his own will be exempt, but if he does not raise it, we do not raise it on his behalf. And what about one who incites to other transgressions? There there is no need to raise the argument, because there is no offense of incitement.

Yet this requires explanation. That argument says that the inciter bears no responsibility for the acts of the one enticed. He is not guilty of that offense. If so, even in the case of idolatry, grave as it is, how can one accuse a person who bears no responsibility and did not participate at all in his fellow’s deed? It should be remembered that if the inciter himself raises this argument, he will be exempt even if he incited to idolatry. In other words, this argument has the power to exempt even from that severe offense. So why, if he does not raise it himself, do we not exempt him on that basis? After all, a person should not be held liable for someone else’s offenses.

The Yad Ramah’s Difficulty

The Yad Ramah, in the Sanhedrin passage there, asks:

And if you ask: Why say only that if he did not make this argument we do not make it for him—if he did make it, would it really be an effective argument? For the inciter described by Scripture is liable even though the one enticed did not obey him and no transgression was committed at his prompting, as we learned (below, Sanhedrin 67a): If he said it to two, and they are his witnesses, they bring him to court and stone him. All the more so where the one enticed did obey him, he cannot argue, “When the words of the master and the words of the disciple conflict, whose words should one heed? One should heed the words of the master.” An inciter is different, because idolatry is severe and the Merciful One said, “You shall not spare him nor conceal him.”

And the Yad Ramah answers:

For when we say this here, we are speaking of an ordinary inciter, analogous to the serpent, which is the case under discussion; and from this we learn that an inciter with respect to all other Torah prohibitions, apart from idolatry, is exempt only if he raises the claim, but if he does not raise it, we do not raise it for him.

He explains that one who incites to ordinary transgressions is exempt by the argument “the words of the master,” even if he does not raise it himself, whereas one who incites to idolatry is liable even if no one listens to him, and precisely for that reason the exculpatory argument of “the words of the master” does not apply to him.

His words imply that even one who incites to an ordinary transgression is subject to a prohibition and even a punishment, except that he can be exempted by the argument “the words of the master.” This is not the usual assumption, namely, that one who incites to an ordinary transgression commits no offense and therefore incurs no punishment. It seems that, according to the Yad Ramah, every inciter bears liability and punishment for the acts of the one enticed (but not for the incitement itself, if the one enticed did not obey him). He can only be exempted by force of the argument “the words of the master” (even if he himself does not raise the claim). But if a case were to arise in which the argument “the words of the master” were irrelevant—for example, if the offender did not know at all that the act was prohibited (and therefore had no reason not to listen to the inciter)—then even in the case of an ordinary transgression there would be a prohibition and punishment for incitement.

The Source of the Offense of Incitement

What emerges, then, is that according to the Yad Ramah, one who incites to any transgression is subject to a prohibition and a punishment. What is their source? The prohibition of incitement is apparently learned from our passage, and the assumption is that no distinction should be drawn between incitement to idolatry and incitement to other transgressions (except with respect to the question of whether claims are made on his behalf, which is learned from the verse “You shall not spare him nor conceal him”). But the punishment assigned to the inciter is unclear. It may be that the punishment here is lashes, as with any negative commandment.

But perhaps his meaning is that the inciter receives the punishment prescribed for the person who committed the transgression performed by the one enticed. That is, if a person incited his fellow to eat pork, he would receive lashes (like one who eats pork), and if he incited him to desecrate the Sabbath, he would incur the death penalty. Support for these novel claims may perhaps be found in Maimonides’ well-known ruling at the end of the Laws of Diverse Kinds (10:31):

If one dresses his fellow in mixed fibers, then if the wearer acted knowingly, the wearer is lashed, and the one who dressed him transgresses the prohibition “Do not place a stumbling block before the blind.” But if the wearer did not know that the garment was mixed fibers, and the one who dressed him acted knowingly, the one who dressed him is lashed and the wearer is exempt.

The prohibition of causing another to stumble (“Do not place a stumbling block before the blind”) does not incur lashes. Therefore it is clear that the lashes under discussion are lashes for the prohibition of mixed fibers. Even though the one who dressed him did not himself wear mixed fibers, he is lashed for the mixed-fibers prohibition that he brought about. In Rashi’s formulation (Num. 30:16): “One who causes his fellow to stumble takes his place with respect to all punishments.” It should be noted that several commentators (see, for example, Radbaz’s commentary on this ruling) wondered from where Maimonides derived this novel law. On our approach, one may perhaps suggest that his source lies in the passage of the inciter.

Source (Google Doc): https://docs.google.com/document/d/1KE-vVT3zgnWMs9ildKQO6XJc-nKCPXio/edit?usp=sharing&ouid=103054435058019085063&rtpof=true&sd=true