On Repentance, Atonement, and Punishment

With God's help

The Yossi Laor Volume – 5770 (2010)

These remarks are dedicated, with appreciation, to my dear friend and steadfast supporter, R. Yossi Laor, whose hand is broad in many fields of wisdom, upon reaching old age (see Avot 5:21). Nowadays, however, old age is perceived as a kind of defect or deficiency. To say of someone that he has reached old age almost sounds like a term of disparagement. Yet in terms of life expectancy, the present situation is such that age sixty is not really old age (if only at age twenty I had managed to run and walk as Yossi the “old man” does today).

But in our tradition, old age is the stage between counsel (age fifty) and hoary old age (age seventy). And the Sages already said: Only a wise man is called an elder (see Kiddushin 32a, and similarly there on 32b). They also said: Whoever takes counsel from elders does not stumble (Exodus Rabbah 3:8).

Our blessings for length of days, continued growth in Torah and wisdom, abundant health and satisfaction from all his descendants, together with his wife, may she live long and well.

From Dafna and Miki Abraham

Introduction

The Torah commands us with commandments and warns us against transgressions. When we commit certain transgressions, punishments imposed by the court apply to us. For every transgression or neglect of a positive commandment, one must repent, and the Torah introduces the principle that repentance atones for the sin. The person returns to what he was before he sinned.

Does repentance also exempt him from punishments imposed by the court? For example, a person ate pork and incurred forty lashes. After eating it, he repented completely, and now they come to flog him. Is he exempt from the lashes, or not?

Our tradition takes it for granted that he is not. But this requires explanation: why does repentance not return us entirely to the state before the sin, as though we had never sinned at all?[1]

Yossi always seeks applications of abstract ideas (= heaven) in the soil of reality (= earth), in the spirit of bringing conceptual discussion into alignment with practical Jewish law; and if possible, it is preferable actually to touch them with one’s hands. On the other hand, it is also important to him to expose the abstract ideas that stand behind factual determinations and concrete occurrences (which is closer to my own inclinations). Perhaps this article too, which touches on the relation between heaven and earth, does something in those directions.

Primary sources

In the Mishnah at the beginning of chapter 3 of Makkot (13a), a list of those liable to lashes is brought:

And these are those who receive lashes: one who has relations with his sister, or with his father’s sister… one who ate untithed produce, or first tithe from which its heave-offering was not taken, or second tithe or consecrated property that were not redeemed…

Rashi there notes that the list is not complete, and he explains:

These are not meant exactly or exhaustively, for the tanna taught and omitted many others liable to lashes. Rather, he taught those liable to karet in order to teach us that there are lashes for those liable to karet, and he taught the widow and divorcee in order to teach us…

And in the Talmud there:

Gemara: It teaches those liable to karet; does it not teach those liable to death by the court?

And Rashi there:

It teaches those liable to karet—that is, all those liable to karet that do not also involve death by the court are mentioned in our Mishnah regarding lashes, while not even one of those liable to death by the court is mentioned in it as receiving lashes if he was warned for lashes.

Later the Talmud answers:

Whose view is the Mishnah? It is Rabbi Akiva. For it was taught: Both those liable to karet and those liable to death by the court are included in the category of forty lashes—these are the words of Rabbi Yishmael. Rabbi Akiva says: Those liable to karet are included in the category of forty lashes, for if they repent, the heavenly court forgives them; those liable to death by the court are not included in the category of forty lashes, for if they repent, the earthly court does not forgive them.

The conclusion of the Talmud is that the Mishnah teaches us (in accordance with Rabbi Akiva) that those liable to karet are subject to forty lashes, whereas those liable to judicial death are not flogged. What is the relation between liability to lashes and liability to karet? Are there two punishments here in parallel? The Talmud explains that these are indeed two punishments, but this is not a case of “two punishments,” since one can be released from the punishment of karet through repentance. By contrast, from liability to death imposed by the court, just as from liability to lashes, there is no way to be released by means of repentance.

And so Rashi writes there:

Rabbi Akiva says: Those liable to karet—if they were warned for lashes, they fall within the category of lashes and are flogged, and there is here no problem of two punishments, that you would punish him with lashes together with karet. And why is this not considered two punishments? Because he can exempt himself from the punishment of karet through repentance, by the heavenly court. But those liable to death are not included in lashes, because there are here two afflictions—lashes and death—and after being flogged he will ultimately be executed, for even if he repents, the earthly court does not remit the death penalty.

From here is the source for the principle that one cannot escape punishments imposed by the court through repentance. Only heavenly punishments are remitted through repentance. This is also explicit in Nachmanides, Milḥamot at the end of Makkot, and see further Eyn Zokher by Chida, entry mem, subsection 20, at the end.

Repentance with respect to testimony

As is well known, a wicked person is disqualified from testimony. By Talmudic law, once he repents he regains his fitness. So too it is ruled in Shulchan Arukh, Choshen Mishpat 34:7:

A thief, and likewise a robber, are disqualified from testimony from the time he stole or robbed; and even if he returned what he took, he remains disqualified until he repents.

Likewise there, in section 22:

Those who hand Jews over to violent oppressors, and heretics and apostates to idolatry, are worse than idolaters and are disqualified from testimony.

Gloss: Even if the person who was informed against forgave him, he is disqualified until he repents (Beit Yosef in the name of M.K., and from the words of Maimonides in chapter 12, and so it implies in Ashrei, chapter 7, section 2). An apostate who retracted and accepted repentance upon himself is immediately fit, even though he has not yet carried it out (Maharik, root 85).

And there in sections 28–29:

28. If two testified about someone that he was disqualified because of one of these offenses, and then two came and testified that he had retracted and repented, or that he had received lashes, he is fit…

29. Anyone who became liable to lashes, once he has been flogged by the court returns to his fitness. But the other persons disqualified from testimony, who are disqualified because of money that they extorted or stole, even though they have paid it back, require repentance and remain disqualified until it becomes known that they have turned back from their evil way.

From when is a lender at interest considered to have returned? From when they tear up their promissory notes on their own initiative and fully retract, so that they will not lend at interest even to an idolater. And he must return everything he took as interest to its owners; and if he does not know from whom he took it, he must use it for public needs. Gloss: Some say that all this applies specifically to one who regularly robs and steals; but one who stole or robbed only incidentally, as soon as he returns what he stole or robbed, that is repentance. And this is only if he returned it on his own; but if he returned it only through the compulsion of the court, the return is ineffective until he repents (Tur and Rosh, rule 58), and so it seems to me.

Later in that section it continues to spell out how the return of every type of offender must be effected, but this is not the place to elaborate. In any case, we learn from here that repentance is effective in restoring a person who was disqualified because of wickedness, making him fit for testimony.

However, it is also ruled here that lashes are effective for this, which implies that this is so even without repentance. In other words, repentance is required only where there is no punishment of lashes. This is somewhat difficult, since punishment without repentance does not atone (see Maimonides, Laws of Repentance 1:1, cited below, and see also the responsa Dovev Meisharim, part I, no. 21).

And the Sema there cites the source for this rule from the passage in Makkot 23a:

Once he has been flogged by the court. We derive this [Makkot 23a] from the verse [Deuteronomy 25:3], ‘then your brother shall be degraded before your eyes’—as soon as he has been degraded and flogged, Scripture calls him ‘your brother.’

Still, this requires explanation, for the disqualification of a wicked person is either because of his wickedness or because of suspicion of falsehood, and neither of these has changed if he has not repented. It would seem, then, that the disqualification of a wicked person from testimony is not because of concern that he lies, but rather is a kind of punishment.

Now if the disqualification were because of concern for lying, it is obvious why repentance helps restore him to fitness. At present there is no concern for falsehood; he is no longer wicked, and therefore he is fit to testify. But if the disqualification is a kind of punishment, then the difficulty returns: why does repentance help here, when we have seen that repentance does not help exempt from punishments?

A preliminary conclusion

In the passage in Sanhedrin 27a, Abaye and Rava disagree whether only a wicked person of monetary violence (= one who committed offenses involving money) is disqualified from testimony, or every wicked person (= one who committed an offense punishable by lashes). Ketzot HaChoshen explained that their disagreement concerns the question whether the disqualification of a wicked person is because of concern for falsehood or whether it is an intrinsic personal disqualification. According to Rava, only a wicked person of monetary violence is disqualified, because in his view the problem is concern for falsehood, and one who is suspect regarding prohibitions is not necessarily suspect regarding lies. Only someone suspect regarding money is suspect of lying in monetary testimony. Abaye argues that this is an intrinsic personal defect: every wicked person is disqualified from testimony (and a ‘wicked person’ is one who committed an offense that entails lashes, as Scripture says, ‘and it shall be, if the wicked man deserves to be beaten’). [2]

We can now understand that in the case of a wicked person of monetary violence (such as a robber), the disqualification is because of concern for falsehood. In such a case, clearly nothing but repentance can help, for he is suspect of lying by virtue of his wickedness, and until he repents he remains suspect. Once he has repented, it is obvious why this helps qualify him, since he is no longer suspect. We may add that even if he were flogged (there are no lashes for robbery, because it is a prohibition rectified by monetary payment), that would not qualify him, since he would still be suspect. By contrast, in the case of an ordinary wicked person (such as someone who ate pork), the disqualification is not because of concern for falsehood but because of an intrinsic personal disqualification. Therefore here he returns to fitness either if he repented or if he was flogged. If he repented, he is no longer wicked; and if he was flogged, he has ‘paid his debt to society,’ and there is no reason for further social sanctions, so he again becomes qualified for testimony.

We see that lashes and repentance are two parallel tracks. Lashes scour the sin and constitute punishment that society imposes on the offender. Repentance turns him into a better person and brings forgiveness. Therefore repentance always helps restore fitness for testimony, but lashes help only where there is no concern for falsehood. According to this, the fact that in section 29 of the Shulchan Arukh lashes are not mentioned as a possibility for returning to fitness is not only because there are no lashes for a robber or for a wicked person of monetary violence, but because even if there were lashes they would not help. A wicked person of monetary violence is suspect of falsehood. Below we shall see this duality in greater detail.

The effect of repentance on the conduct of the earthly court: additional contexts

In the Mishnah in Yevamot 22a, the rule appears that a mamzer son exempts his father’s wife from levirate marriage, and he is liable for striking his father and for cursing him. In the Talmud there, on 22b, they object that the father is not one who ‘acts as one of your people,’ and therefore it is not clear why the son should be liable for striking him. They answer that the case is where the father repented.

And Tosafot, s.v. ‘when he repented,’ wrote there:

As for what is stated in the chapter on those who are strangled (Sanhedrin 85b and there), that in every case a son may not act as his father’s agent to strike or curse him except in the case of an inciter, etc.—there it is speaking of a case where he repented. And if you ask: Granted, with respect to lashes you can find such a case, since he is liable even though he repented; but with respect to cursing, one who has repented may not be cursed even by another person! It may be answered that if he uttered the divine name in vain, or did something for which he became liable to excommunication, then even though he repented he remains liable and is not exempt.

Tosafot determine that if the father is liable to lashes or excommunication, he is not released from them even if he repents. Yet within their words it appears that after repentance one may no longer curse him. That is, repentance is effective regarding these offenses, but it does not exempt from the punishment, not even from the punishment of excommunication (which is not quite an ordinary punishment imposed by the court). [3]

And so it is ruled as law by Maimonides, Laws of Rebels 5:12 (and so too in Shulchan Arukh, Yoreh De'ah 241:4):

If a person’s father or mother were complete wicked people and transgressors, even if their sentence to execution has already been concluded and they are being taken out to be executed, it is forbidden to strike or curse them. If he cursed them or wounded them, he is exempt. But if they repented, he is liable and is executed on their account, even though they are already being taken out to death. In what case is this said? In the case of their son. But if another person came and struck or cursed him after his sentence had been concluded, even if he repented, that other person is exempt, since he is on his way to death. If, however, he shamed him, he is liable for the penalty for causing shame.

Thus repentance helps restore a person’s standing for purposes such as being considered one who ‘acts as one of your people,’ and certainly for testimony and the like; but regarding punishments imposed by the court, repentance does not help.

However, it should be noted that later in the Talmud there we find:

And he is liable for striking him. Why? One can invoke here the verse [Exodus 22], ‘You shall not curse a ruler among your people’—meaning one who acts as one of your people! As Rav Pinḥas said in the name of Rav Pappa: it is speaking of one who repents; here too, it is speaking of a case where he repented. But is he subject to repentance? Did we not learn: Shimon ben Menasya says, What is the meaning of [Ecclesiastes 1], ‘That which is crooked cannot be made straight’? This is one who had relations with a forbidden woman and fathered a mamzer from her. At any rate, at present he is acting as one of your people.

That is, for liability for striking him, it is enough for us that at present he acts as one of your people, even if repentance does not repair the past. Perhaps the same holds for testimony and the like, since what matters in testimony is his present state, not the past. Disqualification from testimony and permission to strike are not punishments but natural consequences of a given status, and when that status changes, that is enough. If so, nothing can be learned from here regarding punishment, beyond the fact that punishment is imposed not for the present but for the past (and therefore repentance does not help with respect to it).

Now Arukh LaNer on Tosafot there wrote:

Under the heading ‘when he repented.’ There, it means when he repented. In my humble opinion, even if we do not know whether he repented, it still makes sense that it is forbidden to strike or curse him, lest he may have contemplated repentance in his heart. As we say in Kiddushin 49b regarding a man established as wicked who betroths a woman on condition that he is completely righteous, we are concerned for the betrothal lest he may have contemplated repentance in his heart; and the same applies here.

He notes that even a concern that he may have repented is sufficient, since in any event there is a doubt that perhaps he did repent. His proof is from the passage in Kiddushin concerning a wicked man who betrothed a woman on condition that he is completely righteous, where in practice we take the betrothal seriously. [4] Below we shall return to the state of doubt.

The apostate city

Maimonides brings the law of the apostate city in Laws of Idolatry, chapters 4–5. In 4:6 he writes:

And what is the law of an apostate city? When it is fit to be made an apostate city, the Great Court sends and inquires and investigates until they know by clear evidence that the entire city or the majority of it has been led astray and turned to idolatry. After that, they send them two Torah scholars to warn them and bring them back. If they return and repent, all is well; but if they persist in their folly, the court commands all Israel to go up against them in war, and they besiege them and wage battle against them until the city is breached…

And the Raavad comments there:

Raavad’s gloss: ‘After that they send them two Torah scholars to warn them and bring them back; if they return and repent, all is well.’ I say: It would indeed be a good thing if repentance helped them, but I have not found that repentance is effective after warning and the deed.

The Raavad understood Maimonides to mean that if the inhabitants of the apostate city repent, the sin is forgiven them and they are exempt from the death penalty imposed by the court that they had incurred. From here he challenges Maimonides, for we do not find that repentance is effective after one has already become liable to punishments imposed by the court (after warning and action).

The commentaries there struggle to explain the disagreement, but all agree that one cannot be exempted from punishments imposed by the court through repentance. It should be noted that Maimonides does not codify as law this rule from the passage in Makkot, but in any case this is the assumption of the commentators.

Migdal Oz, however, comments there:

And I say that there was a scribal error in his text. I have already checked a book corrected in the handwriting of Rabbi Moshe [Maimonides] of blessed memory and bearing his signature, and it does not read, ‘after that they return.’ But even if it did, I am astonished: why should repentance not help after anything in the world? For Scripture says (Jeremiah 3), ‘Return, backsliding children,’ etc., as is stated in Rosh Hashanah 18a, Yoma 86a, and the Jerusalem Talmud, Peah, chapter 1, at the end of the halakhah.

He explains how the Raavad came to understand Maimonides this way (because in his version the text read: ‘afterward they return and send them two Torah scholars’). But in the final analysis he wonders: why indeed should repentance not help a person escape punishment? The sources he cites there deal with the gradations of atonement and the operation of repentance. For example, in the passage in Yoma 86a we find:

Come and hear. Rabbi Yehudah says: For everything from the prohibition of taking God’s name in vain and below, repentance atones; for taking God’s name in vain and above, repentance suspends and Yom Kippur atones. Taking God’s name in vain and anything similar to it. Come and hear: Since at Horeb it says of repentance, ‘and He cleanses,’ one might think even taking God’s name in vain is included among them; therefore Scripture says [Exodus 34], ‘He does not cleanse.’ One might think the same is true of all others liable for prohibitions; therefore Scripture says, ‘His name’—it is specifically His name that He does not cleanse, but He does cleanse others liable for prohibitions. This is a tannaitic dispute, as it was taught: For what does repentance atone? For a positive commandment and for a prohibition transformed into a positive commandment. And for what does repentance suspend and Yom Kippur atone? For cases of karet and court-imposed death, and for an outright prohibition. The Master said: Since at Horeb it says, ‘and He cleanses’—from where do we know this? For it was taught: Rabbi Elazar says, it is impossible to say ‘He cleanses,’ for it has already said ‘He does not cleanse’; and it is impossible to say ‘He does not cleanse,’ for it has already said ‘He cleanses.’ How so? He cleanses those who repent, and He does not cleanse those who do not repent.

Rabbi Matya ben Ḥarash asked Rabbi Elazar ben Azariah in Rome: Have you heard the four divisions of atonement that Rabbi Yishmael used to expound? He said: There are three, with repentance accompanying each one. If one transgressed a positive commandment and repented, he does not move from there until he is forgiven, as it says [Jeremiah 3], ‘Return, backsliding children.’ If one transgressed a prohibition and repented, repentance suspends and Yom Kippur atones, as it says [Leviticus 16], ‘For on this day He shall atone for you from all your sins.’ If one transgressed offenses punishable by karet or court-imposed death and repented, repentance and Yom Kippur suspend, and sufferings cleanse, as it says [Psalms 89], ‘I will punish their transgression with the rod, and their iniquity with afflictions.’ But one who has desecration of the Divine Name in his hand has no power in repentance to suspend, nor in Yom Kippur to atone, nor in sufferings to cleanse; rather, all of them suspend, and death completes the cleansing, as it says [Isaiah 22], ‘Surely this iniquity shall not be atoned for you until you die.’

We see that repentance atones, and at times death, lashes, or suffering are also required. But there is no hint there that after repentance the punishments of the court are then administered. There it is presented as though, after repentance, we have a new person before us (‘and He cleanses’).

Quite a number of commentators dealt with this question and offered several answers. We shall examine here the main directions, one by one.

The approach of Chida and Arukh HaShulchan

Chida, in his book Eyn Zokher, entry mem, subsection 20, discusses this question at length (see especially there from the words ‘And if you should say in your heart’ onward). He explains that, as human beings, we cannot know whether the person repented or not, and therefore the earthly court does not take this dimension into account when judging him for punishment. Similarly, the author of Arukh HaShulchan HeAtid, Laws of Sanhedrin 58:2, wrote this as well, and so too the author of Ma'ayan HaChokhmah on the 613 commandments, p. 80, s.v. ‘This’ (and he added that if repentance were effective, every offender would say he had repented in order to escape punishment).

This does, however, require discussion, because we saw above that with respect to several matters in Jewish law the court does in fact address the question whether a person has repented. For example, regarding restoration of fitness for testimony, or the reliability of slaughter and the like. If these matters are entrusted to the heart, then why does the court there permit itself to judge them?

One might have said that fitness for testimony does not depend on an internal process but on actions, and therefore there the court does judge and decide. And certainly this is so with respect to being considered one who acts as one of your people, which depends only on his present state. But with respect to exemption from punishment, actions alone are not enough; we also require an internal process, since the punishment is imposed for the past. And with respect to that, in his view, the court cannot judge.

Yet one may wonder at this explanation: why should we not cancel the punishment because of doubt? Even if we are unsure whether he repented in his heart or not, how do we punish on the basis of doubt? Seemingly, the burden of proof rests on the one who wishes to punish, and therefore in a case of doubt we should be lenient and not punish. We also saw above, in the note from Arukh LaNer, that even on the basis of doubt one validates him. We do not find anywhere that one punishes where there is only doubt whether the person deserves it. According to Jewish law, even a doubtful warning (that is, a case where at the time of the warning it was not clear that the offender would indeed become liable to punishment) exempts the person from punishment.

One can, however, distinguish and say that here he is liable to punishment by virtue of the fact that he committed the offense; it is only now that he comes to be exempted from the punishment. In such a case, the burden of proof that he repented rests on him, because he stands under a presumption of liability with respect to the punishment. The reason we ordinarily do not punish in a case of doubt is only that, when one comes to impose and issue punishment on someone, the burden of proof rests on the one who so rules. That is the opposite of our case, for there there is a presumption of innocence and exemption from punishment, and whoever comes to impose liability must prove that such liability exists.[5]

I later saw that something like this was written in the responsa Dovev Meisharim (by the Gaon of Tchebin), part I, no. 21, in the final paragraph. There he explains Maimonides’ view that in the case of an apostate city repentance is effective even with respect to the punishment, because when a person sins he has a presumption of offender-status, and repentance does not suffice to remove him from that presumption. But in the case of an apostate city, the law is applied to the community; therefore one would need presumptions regarding all the sinners that they did not repent, and one person’s presumption does not help with respect to another (see his proofs there). Still, it remains unclear why repentance is effective with respect to testimony, for there too we ought to follow the presumption of disqualification. Perhaps one may distinguish between the repentance required for fitness for testimony and the repentance required for exemption from punishment.[6]

The approach of Noda B'Yehuda

The author of Noda B'Yehuda, in the first edition, Orach Chaim no. 35, discusses the question of what constitutes the essence of repentance: fasting and suffering, or the act of repentance itself (regret, confession, and the like). He writes there as follows:

But I say that all this would be so only if fasting were something indispensable to repentance. In truth, however, fasting is only secondary to repentance. The essence of repentance is abandoning the sin, verbal confession with a broken heart, wholehearted remorse, and drawing near with ardor to love the Creator. That is repentance: that he return to the Lord and He will have compassion on him; and ‘return to the Lord’ means that he cleave to Him. But the other things—fasting and self-mortification—are not essentials.

And you should know that it is beyond doubt that repentance atones with complete atonement. This is well known in the Torah, Prophets, and Writings, in both Talmuds and all the midrashim. The prophet says (Ezekiel 18), ‘When the wicked turns from his wickedness…’ and (ibid. 33), ‘None of the sins that he committed shall be remembered against him,’ etc. This too is beyond doubt: when the Sanhedrin functioned, if someone committed an offense punishable by death at the hands of the court after proper warning, even if the witnesses delayed and did not come to court for many years, and in the meantime he repented and undertook countless mortifications and fasts, far more than the ‘equivalent repentance’ mentioned in the Rokeach, and afterward—after all that repentance—the witnesses came to court and testified, certainly the court would pay no attention to his repentance, and they would burn or stone him according to the punishment of the sin. And the matter is astonishing: since repentance certainly helped and his iniquity has departed and his sin has been atoned for, why should he be put to death? Does Scripture not say, ‘Do not kill the innocent and the righteous’? And explicitly they said at the beginning of ‘These Are Those Who Receive Lashes’: one liable to death who repented—the court does not forgive him.

Rather, it is surely a scriptural decree. Otherwise all the punishments of the Torah would be nullified altogether, for no one would ever be put to death by the court, since he would say, ‘I have sinned, and now I repent.’ Since the Holy One wished to impose the death penalty for certain sins so that a person would fear to transgress, it is necessary that repentance not avail to save him from death by the court.

And if you were to say that repentance of equivalent measure is the essence of repentance, then surely it was said to Moses at Sinai that every sin and guilt has its measure and the measure of its repentance according to its gravity. If so, why should repentance not avail to save one from death by the court? Yet all the death penalties of the court would not thereby be abolished, because we could examine whether he mortified himself according to the proper measure. And especially since there are many mortifications with which deception is impossible—such as sitting naked before bees, rolling in snow, and the like, as mentioned in the books on repentance. One who did not do what corresponds to his measure would be put to death by the court. And even with fasting, deception is impossible, for if the witnesses come immediately to court he will be put to death, since he has not yet fasted.

And do not say that even then all court punishments would be nullified, because at the time of warning there is a doubt lest he repent and thus it would be a doubtful warning. That is not so, for ordinarily the witnesses will bring him to court immediately. Moreover, this works only according to the view that a doubtful warning is not a valid warning; but according to the view that it is valid—and so we rule—what can be said? Rather, it is certainly the case that mortifications and fasts are not essential from the Torah’s perspective; the essence of repentance is complete remorse. And that can occur in a single moment. If you say that repentance saves from death by the court, then all the laws of court-imposed death penalties would disappear.[7]

Noda B'Yehuda explains that there is no remission of the punishment because this is a scriptural decree meant to deter. If a person could exempt himself through repentance in the heart, he could always claim to have repented, and we cannot know what is in his heart. In the final paragraph he explains that from here there is proof that the essence of repentance is not suffering and fasting, for if it were, we ought to waive the punishment after he had repented, since concrete actions actually performed are not matters entrusted to the heart, and everyone can see whether he repented or not.

One might have objected that there is no reason to fear his being exempted from the punishment, for if in fact he does not deserve it, then it is good that he should be exempt. Noda B'Yehuda explains there that punishments are meant to deter, and therefore it is important to administer them (even on the chance that he truly did sincere repentance). Accordingly, any argument liable to eliminate the administration of punishments altogether is clearly impossible.

Thus he explains that punishment imposed by the court is not remitted with repentance because we cannot know whether a person repented or not. This direction is similar to what we saw in Chida, except that he adds that the purpose of punishment is deterrence and that there is a scriptural decree not to exempt him because of repentance. It seems that he does not accept what we explained in Chida’s view, namely that repentance comes to exempt from the punishment and therefore the burden of proof is on the one who would exempt. He apparently understands that the burden of proof ought to rest on the one who punishes even in such a case. Therefore he requires a different rationale, and he explains that the social purpose of punishment will not be achieved if we take this argument into account.

It may be that the reason is that, in his view, the claim that repentance comes to remove a presumption of liability is incorrect, perhaps because of the rule that the congregation must seek to save the accused. Therefore he needs another rationale. He explains that the Torah wants us to administer the punishment, apparently in order to deter, and if repentance exempted from punishment, the punishments could not be administered and the deterrence would not come about. We see that in his view the basic rule is that repentance really should have exempted, and only then comes a scriptural decree that it does not. In other words, he sees the situation as one of presumed innocence (perhaps because of the rule that the congregation must seek to save), and not as one of presumed liability.

It appears that underlying this is a conception of punishment that sees punishment as a kind of deterrence. Chida, by contrast, apparently sees punishment as something substantive, whose purpose is to purify the sinner and atone for him. Therefore, if in truth he no longer deserves punishment, one should not punish him.

The approach of Maharal[8]

Maharal, in his book Netivot Olam, Netiv HaTeshuvah, at the beginning of chapter 2, also addresses this question.

Already from the very way he formulates the question, one sees that his conception is the reverse of that of his predecessors. They asked why repentance does not help exempt from punishment in the earthly court, whereas he asks why repentance does help exempt in the heavenly court. That is, they assume that as a matter of reason repentance ought to help in every context (and so write Migdal Oz, Noda B'Yehuda, and others), and therefore the difficulty concerns the earthly court. He, by contrast, assumes that as a matter of reason repentance does not erase the punishment, that is, it should not help in any context, and therefore his question concerns the heavenly court: after all, the sin was committed, and one cannot rewrite history, so why is the punishment remitted?

Below we shall see that Maharal’s answer too is the reverse of that of his predecessors. More than that: within his discussion he also rejects the possibility that perhaps the court does not know what is in a person’s heart, for he writes that in court the punishment is not remitted even if they knew with certainty that he had repented (he assumes such a possibility exists, apparently in light of the laws of testimony that we saw above).

Maharal gives two answers in that passage, and the relation between them is not entirely clear (simply speaking, they seem to complement one another into a single approach, but this is not the place to elaborate).

1. The heavenly court judges also with respect to reward and beneficence, whereas the earthly court’s role is only to judge punishment and harm. Therefore the heavenly court can judge a person also according to his repentance. It is not entirely clear what exactly his answer to the difficulty is. Why is this relevant to the question he is discussing?

It seems that his intention is to say that repentance is not treated as erasing the sin. When a person repents, on the one hand he deserves punishment for the offense, and on the other hand he deserves reward for repenting. Perhaps in the final accounting the two are offset against one another, and therefore the offense is erased; but fundamentally there are two independent components here. Therefore the heavenly court takes repentance into account, whereas the earthly court only punishes and does not consider repentance.

This is an interesting conception of repentance. According to Maharal, repentance does not erase the sin even in the heavenly court; it simply stands alongside it. Perhaps the reward for repentance offsets the punishment. This fits very well with what we saw in his formulation of the question. There too we saw that, in his view, repentance does not completely erase the sin.

And so too one sees in Lechem Mishneh on Laws of Repentance 3:3. There Maimonides writes that those in the middle are left hanging in suspense, and if they do not repent they are judged to death. Lechem Mishneh asks: why, if they do not repent, are they judged to death? Seemingly the Holy One inclines toward kindness. He explains that this middle-ranking person bears punishment for not repenting. That is, repentance has an independent status and value (for better or for worse), and does not merely erase or fail to erase the offense that was committed.

1. Later in his discussion there, Maharal brings an explanation that appears different: only the Holy One accepts penitents, and therefore only the heavenly court cleanses those who return. The earthly court acts according to strict law, and within the framework of strict law there is no acceptance of repentance, for the offense was committed and cannot be erased from history. In other words, he explains here that acceptance of repentance is beyond the strict letter of the law, whereas the earthly court operates according to strict law, and therefore it is not affected by repentance.[9]

Here it would seem that he takes repentance to erase the sin, unlike his view above. But this is only that the sin is, as it were, erased. After all, he assumes that by strict law sins cannot be erased retroactively, as we saw in his way of framing the question and also in his first answer. Therefore he explains that acceptance of repentance is beyond the strict letter of the law, and only the Holy One is empowered to do that.

In any case, according to Maharal, repentance does not erase the liability to punishment in the earthly court even if we could know with certainty that the person repented. This is not a matter of inability to know what is in a person’s heart, but a matter of essence. This is unlike the view of Chida and Noda B'Yehuda. It is not at all a question of presumption of liability or presumption of exemption; in his view repentance simply does not operate on the plane of punishments imposed by the earthly court.[10]

This continues what we saw in the Shulchan Arukh in the laws of testimony: punishments imposed by the court scour the sin, while repentance brings fitness and forgiveness (it turns the person into a righteous person and a speaker of truth). Therefore these are two parallel tracks, each performing a different function.

We may further say that according to Chida and Noda B'Yehuda, repentance indeed seems to repair the past and not merely offset it. Their entire difficulty is based on the assumption that repentance repairs the sin as though it had never been committed, and therefore they ask why he remains liable to punishment in the earthly court. They assume that repentance performs the same operation that punishment performs. Maharal, by contrast, raises the question with respect to the heavenly court, and therefore he brings explanation(s) that assume exactly the opposite: repentance does not repair the sin.[11]

The approach of the author of Beit She'arim

I have now come across a unique and innovative view in the responsa Beit She'arim, Orach Chaim no. 294. There he deals with the paths of repentance, and he too investigates Noda B'Yehuda’s inquiry: is the essence of repentance the repentance in the heart according to the formal categories of Jewish law, or is the essence of repentance specifically suffering and acts of atonement? He explains that both are needed, but repentance without suffering does not atone. In the course of that discussion, there, s.v. ‘But according to this,’ he writes:

But accordingly, we must consider the novel point that Noda B'Yehuda, first edition, Orach Chaim no. 35 cited above, raised: regarding all those liable to death by the court, why is it that if they repent the earthly court does not forgive them, since he repented and his iniquity has departed and his sin is atoned for, and Scripture says, ‘Do not kill the innocent and the righteous’? From this he proved that the essence of repentance is abandoning the sin, verbal confession, and remorse. If so, if repentance were effective, all the punishments of the court would be nullified, since everyone would say, ‘I have sinned and now I repent,’ whereas the Torah said, ‘so that they may hear and fear.’ If repentance were effective, there would be no ‘they will hear and fear,’ because everyone would do as stated above. But if we say that repentance of equivalent measure is the essence of repentance, then surely it was told to Moses at Sinai that every sin has its corresponding measure of repentance. If so, why should repentance not avail to save one from death by the court? Yet the punishments of the court would not thereby be nullified, and ‘they will hear and fear’ would still apply, because this is something whose facts can be clearly ascertained—whether he performed repentance of equivalent measure.

And according to what was said above—that repentance without sufferings does not atone—it can well be said that we require repentance of equivalent measure; and if he truly did so, the earthly court forgives him. What we say, that if he repented the earthly court does not forgive him, refers only to a case where he repented merely by abandoning the sin, verbal confession, and remorse, since that is something that cannot be clearly determined. But if he performed repentance of equivalent measure, they do forgive him. Nevertheless, he is still not included in the category of forty lashes, because lashes together with repentance of equivalent measure would constitute two punishments, and lashes are lighter than repentance of equivalent measure for one liable to death by the court. But those liable to karet—where if he repents in his heart the heavenly court forgives him, and the repentance of equivalent measure or heavenly sufferings that he needs afterward are lighter than lashes—therefore they are included in the category of forty lashes.

He explains that repentance without suffering does not atone. According to this, if a person undertakes repentance of equivalent measure (= suffering), he is indeed atoned for, and thereby he is exempt even from punishments imposed by the earthly court. And what is stated in the Talmud in Makkot 13b, that repentance does not help with respect to punishments imposed by the earthly court, refers only to repentance in the heart, for the reason given by Noda B'Yehuda. This is a tremendous novelty.[12]

Yet this innovation is plausible, because the court does in fact judge not a little with respect to things of the heart (it is supposed to assess whether a convert is sincerely intending conversion, and the like), and therefore it is not clear why here we would not accept its ruling concerning that person as to whether he is a penitent or not, especially if concrete acts of repentance are involved, regarding which we maintain that unexpressed intentions are not legally significant. This is analogous to conversion, where one follows the act and inward thoughts neither add nor subtract (unless they are in his heart and in the heart of every person). Only if we follow Maharal, that even if it became entirely clear to the court that this is a true penitent he still is not exempt from punishments imposed by the court, can we say that repentance truly does not help exempt from punishments imposed by the earthly court.

A general picture: punishment and repentance

In the laws of testimony we saw that punishment and repentance are alternative tracks. The central claim is that punishment concerns scouring away the sin, whereas repentance concerns forgiveness. In fact, the entire track of the gradations of atonement (including suffering) concerns forgiveness. The scouring away occurs only in punishments imposed by the court. Yet in Beit She'arim we see that, in his view, there are not two separate tracks: punishment imposed by the court is simply part of the suffering within the gradations of atonement. Therefore, when a person undergoes suffering there is no need to punish him, because the punishment itself is the suffering.

This brings us back to the controversy over semikhah. In Maharalbach’s Kuntres HaSemikhah (at the end of his responsa), it is explained that the basic motivation for renewing semikhah was the desire to flog offenders in order to atone for them. The conception of those who supported renewing semikhah was that without punishment imposed by the court the atonement is incomplete, exactly as emerges from our discussion here. Maharalbach, however, disagrees with them, and his argument is that in an age without ordained judges repentance does all the work. Atonement is complete even without punishments imposed by the court.

At first glance, his words are compelling, because according to the opposing view it would follow that when there are no ordained judges, the whole Jewish people have no possibility of atonement, and that is implausible. On the other hand, if Maharalbach is right, then it is not clear why, when there are ordained judges, we do not suffice with repentance and instead also punish in court. After all, repentance does all the work. It would seem from this that the existence of ordained judges and the punishment of lashes only harms us.

It seems that this dispute is precisely the dispute among the later authorities we have seen here. Maharalbach probably learns like Beit She'arim, and in his view punishments imposed by the court are part of the gradations of atonement (they are the suffering). Therefore, even when there were ordained judges, if a person fasted he could be atoned for even without punishment, and therefore the punishment would be waived. Punishments imposed by the court would be given only to one who had not undertaken repentance through ascetic suffering. Today, when there are no ordained judges, punishments imposed by the court are impossible, but one can certainly still attain atonement through suffering. By contrast, Mahari Beirav and his students maintained that punishments imposed by the court are a parallel track, whose concern is scouring away rather than forgiveness, and that cannot be achieved without punishments imposed by the court. On this view it is clear why the Talmud in Yoma does not mention punishments imposed by the court, because it deals with the track of forgiveness, that is, with the gradations of atonement. The scouring away is done only by punishments imposed by the court, and thus Migdal Oz’s difficulty is resolved. Yet according to Maharalbach and Beit She'arim, that passage too is understandable, because the Talmud is indeed referring to punishments imposed by the court when it speaks of the gradations of atonement through suffering. There remains some difficulty with prohibitions that incur lashes, since within the gradations of atonement there they are atoned for even without suffering; how, according to their view, one is to explain the punishment of lashes requires further consideration.

According to this, it would follow that in practice we ruled like Maharalbach, since semikhah was not renewed.[13] That is, as a matter of practical law we seem to follow the view of Beit She'arim, but this does not appear from the words of the decisors and commentators.

A general note

All the difficulties we have raised thus far are based on the assumption that punishment imposed by the court does not require repentance. But as a matter of law, Maimonides rules in Laws of Repentance 1:1:

With regard to all the commandments of the Torah, whether positive or negative, if a person transgresses one of them, whether intentionally or unintentionally, when he repents and turns back from his sin he is required to confess before God, blessed be He, as it says, ‘When a man or woman shall commit…’ and ‘they shall confess their sin that they have done’—this is verbal confession.

This confession is a positive commandment. How does one confess? He says: ‘Please, O Lord, I have sinned, acted perversely, and transgressed before You, and I have done such-and-such. I regret and am ashamed of my deeds, and I will never return to this matter again.’ This is the essence of confession, and whoever confesses at greater length and elaborates on this matter is praiseworthy.

Likewise, those obligated to bring sin-offerings or guilt-offerings, when they bring their sacrifices for their inadvertent or intentional sins, do not obtain atonement through their sacrifice until they repent and make verbal confession, as it says, ‘and he shall confess that wherein he has sinned.’ Likewise, all those liable to death by the court and all those liable to lashes do not obtain atonement through their death or their flogging until they repent and confess. So too, one who injures his fellow or damages his property—even though he has paid him what he owes him—does not obtain atonement until he confesses and turns away forever from doing such a thing, as it says, ‘from all the sins of man.’

Maimonides rules here that all punishments imposed by the court also require repentance. Without repentance, the punishment does not atone. Of course, he does not mean that one who did not repent is not punished, since punishment has additional purposes as well (deterrence and the like). But he will not have atonement without repentance. Regarding death penalties, this is explicit in the Mishnah in Sanhedrin 43b (as cited there by Kesef Mishneh), and regarding lashes Maimonides apparently extended the rule on his own. He does, however, also cite a midrash from the verse ‘from all the sins of man,’ whose source is Sifrei Zuta. See at length Maharalbach’s responsa, Kuntres HaSemikhah.

In any case, it is now unclear how it could even occur to us that repentance would exempt the person from punishment. After all, the punishment itself also requires repentance in order to atone, and without that it does not atone at all. Yet from the premise of the question it emerges that whenever there is repentance, punishment is never needed at all. So what are the midrash and Maimonides talking about?!

According to Beit She'arim, it would seem that the repentance spoken of here is repentance in the heart, and that does not atone without the punishment. That is indeed the plain meaning of Maimonides, for he certainly is not speaking of the person bringing suffering upon himself before he goes to die, but of confessing. Beit She'arim, however, is speaking of repentance of equivalent measure, and that atones in place of the punishment. Still, a small difficulty remains: if he is already a penitent, why should the court not send him to undertake repentance of equivalent measure as well, and then he would be exempt from the punishment? Therefore Maimonides does not seem to support this view.

With some strain one might say that if a person undertakes repentance of equivalent measure on his own, that exempts him from punishment, but if the court sends him to do so, he is not exempt from the punishment. Something similar was distinguished by the Rosh and the Tur, quoted by Rema above at the end of section 29, regarding restoration to fitness for testimony.

The conclusion is that punishments imposed by the court have two aspects: 1. Atonement – which is obtained from the punishment together with repentance. 2. Deterrence and the like – which is obtained from the punishment even without repentance. Perhaps one might have said that the atonement is obtained only from repentance, and that the reason one punishes someone who repented is only in order to deter (as in the Noda B'Yehuda cited above).

Summary: the dispute and the explanations

We have seen a three-way dispute regarding the relation between punishments imposed by the court and repentance:

A. The view of Chida and Noda B'Yehuda – repentance does not exempt from punishment, because we do not know what is in a person’s heart.

B. The view of Maharal – repentance does not exempt from punishment even if we did know what was in his heart.

C. The view of Beit She'arim – repentance of equivalent measure does exempt from punishments imposed by the court.

Two variables are involved in these disputes: punishment and repentance. Each opinion can be grounded in either of these two parameters.

Beit She'arim understands that repentance of equivalent measure and punishment do the same thing. Apparently he understands the goal to be atonement and scouring away. Inner repentance does not exempt from punishment, but he explains this on the basis of Noda B'Yehuda’s reasoning, because we do not know. If we did know, that too would suffice. Repentance of equivalent measure is suffering in place of punishment (see later in his discussion, where he treats this as a matter of two punishments, that is, that one does not impose two punishments, and therefore repentance of equivalent measure exempts from punishment). Clearly, in his view repentance does not erase the offense, for if it did, inner repentance would have sufficed. He explains that repentance of equivalent measure stands in place of the punishment, and therefore it helps. That is, the offense remains and one is liable for punishment, and the suffering is the punishment.

According to Noda B'Yehuda, repentance would have exempted from punishment if we knew what was in his heart, because in his view after repentance the offense has disappeared as though it had never been done. That is also how he formulates his difficulty (and so too Chida). If so, there is now no reason at all to punish.

Maharal does not accept this, and in that sense he stands against the other two views. In his opinion repentance performs an act different from that of punishment. Technical repentance is an offsetting, and only the Holy One may offset, because only He judges also with respect to goodness and reward. That is, in his view repentance does not erase the offense. Essential repentance, by contrast, is a special act of grace by which the deed of the sin is erased, but the court is meant to act according to the strict line of the law. In other words, repentance does not erase the offense; it only, as it were, erases it. Therefore this occurs only from the perspective of the Holy One, not from ours.

[1] Rabbi Yitzhak Mirski drew my attention to this topic in his book Higyonei Halakhah – On Matters of Sabbath and Festivals, part I, Mossad HaRav Kook, pp. 147–148.

[2] One possible explanation is that we do not wish to grant a wicked person social standing. We disqualify him from testimony even when he is not suspected of lying, because we do not want to give him a status such that the court trusts him and acts on the basis of his words. This is a social sanction. Perhaps that is why lashes qualify him again, since he has served his punishment to society. See further below.

[3] The law of excommunication was also brought as practical law in Mishneh LaMelekh, Laws of Torah Study 6:12; see there. See also Panim Me'irot, part I, no. 90. In the responsa Shevut Yaakov, part II, no. 113, it was argued that Rif and Rosh disagree with Tosafot on this point, and in their view excommunication is permitted even after repentance. See, however, the extensive discussion in Eyn Zokher by Chida, entry mem, subsection 20, where he rejects that position and proves against it from all the medieval authorities and from passages in the Talmud.

Throughout that discussion he assumes that there is no difference between excommunication and other punishments imposed by the court, but it seems that Shevut Yaakov does not accept precisely that point. It may be that in his view excommunication is a sanction whose purpose is to bring a person back to repentance, and not a punishment in the strict sense. Accordingly, once he repents there is no reason to excommunicate him. Therefore it is not comparable to punishments imposed by the court, where the purpose is different.

[4] This is also how he explains Maimonides’ novel ruling (in the law cited above), that even regarding a father who did not repent there remains, ab initio, a prohibition on the son to strike him. He attributes this to concern lest the father may have repented. Ordinarily, Maimonides is understood to hold that the obligations of honor and reverence still apply even with respect to a wicked father.

[5] One could, however, discuss this from the standpoint of the rule that the congregation must seek to save the accused, on the basis of which perhaps there would be room to be lenient even in such a case. After all, arguments that reduce liability to punishment are also accepted on the basis of that rule (though this too requires discussion, since one might explain that all such arguments operate only before the liability to punishment is imposed, and therefore come against the backdrop of a presumption of exemption. Only the argument from repentance is a genuine argument for exemption).

[6] The distinction could be based on the fact that testimony is determined according to the present state, whereas punishment is determined according to the time of the sin. Or perhaps the punishment is lifted only if he performed full repentance, unlike the standard for fitness for testimony.

[7] On the topic of doubtful warning, several later authorities have already commented. See HaMe'ir LaOlam, derush 3, s.v. ‘And in this.’ See also the responsa Beit She'arim, which will be cited below; and so too Chida notes there in Eyn Zokher on the words of Noda B'Yehuda.

[8] In HaMe'ir LaOlam, mentioned above, he too proposed a resolution of this matter, and it appears to go in Maharal’s direction, though the formulation is not clear.

[9] This too requires discussion. In Tur and Shulchan Arukh, Choshen Mishpat 13, there appears the rule that the court may strike and punish not according to the strict law. Does the court have no power likewise to exempt from punishment not according to the strict law (or beyond the strict line of the law)? From Maharal’s words here it seems not.

[10] Perhaps according to his first direction this does stand on the same plane (after all, there is an offset between the two things), but even so, in his view the earthly court does not deal with that.

[11] It remains to be considered how this accords with Maharal’s words in chapter 6 of Netiv HaTeshuvah, cited in note 29 of the book Enosh KeChatzir, regarding the two kinds of repentance. Perhaps in the heavenly court there is a special grace such that when a person has repented, intentional sins become merits, meaning that the sin itself too is scoured away.

Moreover, punishments of karet also serve to scour away, like lashes and death. The difference is only that here the scouring is done in Heaven. But perhaps precisely because of that the Holy One says to us: leave karet to Me (see my article on shoresh 14, where I suggested that this is the approach of Halakhot Gedolot, which counts the cases of karet as a commandment, and the commandment is to leave the punishment to the Holy One; see there carefully). This is a stain whose scouring can also be accomplished through repentance. Therefore the Holy One leaves the scouring to Heaven, which can accept repentance as a substitute. The scourings done by the earthly court cannot be done by repentance, since repentance brings only forgiveness and not scouring away.

[12] Afterward he discusses why there is no doubtful warning here, which would eliminate the possibility of punishments imposed by the court altogether. In his view, the current presumption of criminality tells us not to take future change into account unless it is certain to occur. See there for a lengthy discussion. See also the note we cited under the words of Noda B'Yehuda, who wrote that this is indeed a case of doubtful warning.

[13] One may still ask whether this practical ruling is because Maharalbach was right in this claim, or rather because all the sages of Israel did not agree and therefore semikhah was not renewed, but not necessarily because Maharalbach was correct in the substance of his arguments.