Difference between the Heavenly and Earthly Courts Regarding Repentance

The Rabbi’s Opening Post

Difference between the Heavenly and Earthly Courts Regarding Repentance

Posted on 13/9/2013

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Difference between the Heavenly and Earthly Courts regarding Repentance

A Talmudic analysis for Yom Kippur

Several later authorities discuss the question why repentance is effective to secure atonement in the Heavenly Court, but not to exempt one from punishment in an earthly court (as is evident from the beginning of chapter 3 of Tractate Makkot). Several answers have been offered here (and interestingly, in the responsa Beit She’arim it is written that one is indeed atoned for even in an earthly court, but for that we require repentance commensurate with the sin—snow, bees, and fasts—and not merely inner repentance). Some later authorities write that earthly courts cannot know whether repentance was in fact done (one can debate this, for in the laws of testimony we do determine whether someone has repented. But that can be rebutted). And Noda BiYehuda adds that even if it is only doubtful, if we do not punish there will be no deterrence, and therefore they punish. Maharal wrote in a second answer that repentance is beyond the letter of the law (for according to strict law: “Evil pursues sinners” [Proverbs 13:21]), and earthly courts deal only with the strict line of the law.

But I thought of an approach according to which the question does not arise in the first place. After all, it is established that a court may flog and punish outside the formal law. This is so even though it constitutes the active setting aside of a Torah law (they kill an innocent person, or injure an innocent person). So why should they not be able to refrain from punishing one who is in fact liable, which is only a passive omission? If so, the attitude of earthly and heavenly courts toward repentance is exactly the same: as a matter of law there is liability to punishment for anyone who committed an offense, even if he repented (“Wisdom was asked: What is the punishment of the sinner? Evil pursues sinners” [based on Proverbs 13:21]). Yet beyond the letter of the law he may be forgiven. That is what the Heavenly Court does, and that is also what an earthly court does. According to this, all that is stated in the Gemara at the beginning of chapter 3 of Makkot is that there is liability to punishment even if the person repented. And indeed, the law is that he is liable to punishment. But the discussion there does not address the question whether the punishment may be waived. Just as in the laws of punishments it is determined that on the basis of one witness a person is exempt from punishment, but there is no discussion there of whether the court nevertheless puts him into a cell. The Shulchan Arukh determines whether or not there is liability to punishment, and therefore that is the correct halakhic determination.

It is true that in order to punish outside the formal law a reason is required (for the betterment of society and to uphold the boundaries of religion), and therefore waiving punishment also requires a justified reason. But there is certainly such a reason, for example, encouraging people to repent (the carrot instead of the stick). Therefore, when circumstances require it, and when in the judges’ assessment deterrence is not harmed, an earthly court can waive the punishment. In the Heavenly Court this can always be done, because there is no problem of deterrence.

This may perhaps explain a question that someone once raised here (I do not remember who or where): why impose punishments in the Heavenly Court at all? It does not deter, because no one knows that it is imposed. For deterrence, it is enough to declare that punishment will be given without actually giving it. And merely in order not to turn this into a falsehood, it is not reasonable to say that this justifies punishment that is unnecessary. But according to our approach, perhaps in fact the Heavenly Court does not punish at all. They waive the punishment (even without repentance), since there is no problem of deterrence. All that is written is that there is liability to punishment, not that punishment is actually carried out. However, if this very consideration becomes clear to us, and we now know it, then once again there is a problem of deterrence. Therefore, at first glance it seems that they do punish. But now that it has become known to us that they do punish, it again becomes possible not to punish. And if you say that we should continue this recurring cycle farther and farther, that is not so: the infinite continuation of this cycle itself shows that there is no clear answer here whether they punish or not, and therefore deterrence will be achieved automatically, at least from the uncertainty that perhaps we will be punished (just as the Swedish army paradox does not prevent a drill from being a surprise drill). Therefore the Heavenly Court can refrain from punishing in practice, and there is no concern that deterrence will be lost. Of course, one can now run through the cycle again, but this is not the place to elaborate.

What do you think?

Source (forum "Stop Here, Think"): http://www.bhol.co.il/forums/topic.asp?topic_id=3022860&forum_id=1364