Is Coercion to Perform the Commandments a Punishment? (Column 740)

Dedicated to my daughter Rivka and to Hillel, who bravely endured my novelties in the midst of the Day of Teru'ah (Rosh Hashanah).

On Rosh Hashanah I happened to review parts of Rabbi Asher Weiss’s fascinating book Minchat Asher – The Principles of the Commandments. His books and lectures are, in my view, highly recommended. He blends halacha and lomdus; you’ll find there a wealth of knowledge, a lot of plain common sense, and above all a willingness to rely on sevara (reason). Among other things, I read the section dealing with coercion to perform commandments, which prompted several thoughts—mainly about punishment in general and the relationship between positive commandments (aseh) and prohibitions (lo ta’aseh).

Coercion to Perform Commandments

As is known, in halacha the court (beit din) administers punishment for violations of prohibitions, but the court does not punish for neglecting a positive commandment. Yet we find in several places that a person is coerced to fulfill a positive commandment. And specifically regarding prohibitions, later authorities dispute whether there is also a law of coercion there, or only with positive commandments.

The clearest source appears in Ketubot 86a–b regarding repayment of a debt:

Rav Kahana said to Rav Papa: According to you, who say “Repayment of a debt is a mitzvah,” if he says, “It is not pleasing to me to perform a mitzvah,” what is the law? He said to him: We have learned: When do these words apply—regarding negative commandments; but with positive commandments, such as one who is told, “Build a sukkah,” and he does not build it, “Take a lulav,” and he does not take it—they beat him until his soul departs.

If a person declares that he does not wish to fulfill the mitzvah to repay his debt to the lender, he is coerced. The baraita addresses liability for lashes and begins by stating that lashes apply to prohibitions, whereas for positive commandments there is only coercion to fulfill them.

At first glance it seems we are not dealing with punishment here but with an action meant to ensure compliance with halacha. This also emerges from the sources cited by the commentators concerning coercion. For example, Rashi in Arakhin 16b writes that the coercion and striking are due to the mitzvah of “You shall surely rebuke your fellow.” Other later authorities write that it is based on the law of arevut (mutual responsibility; see, for example, Chakrei Lev Orach Chaim I, end of §45, and others). These sources indicate that the aim of coercion is to ensure observance, not to punish. Yet below we will see that some nevertheless viewed this coercion as a kind of punishment.

Returning to the Ketubot passage, several points emerge from its phrasing: (a) There appears to be some link between punishment and coercion to fulfill; otherwise, why juxtapose them?! (b) It is unclear whether the Gemara is saying there is coercion only for positive commandments and not for prohibitions, or whether that limitation applies only to the punishment mentioned at the beginning. (c) The striking is “until his soul departs.” This, too, suggests a punitive dimension. If it were merely a means to ensure performance, it would be unlikely to strike him “until his soul departs.” If the offender dies, he certainly will not fulfill the commandment (though perhaps the intent is “until,” not literally until and including death). There are additional, more indirect sources about coercing observance that I will not enter here. I merely note that the primary halachic codifiers (Rambam, the Tur, and the Shulchan Aruch) do not cite this halacha verbatim, aside from the case of debt repayment.

As noted, the Gemara discusses coercion for positive commandments. In practice, later authorities dispute whether there is coercion also for prohibitions. Rabbi Weiss cites that Maharam Schiff, the Hafla’ah on that Ketubot passage, and the Minchat Chinuch (mitzvah 8) wrote that coercion applies to prohibitions as well. In contrast, the Chavot Yair (end of §166) wrote that there is no coercion for prohibitions, though his reasoning is not entirely clear. Below I will offer an explanation of his words.

Another dispute among later authorities (see Ketzot HaChoshen and Netivot HaMishpat §3, and at length in Meshovev Netivot there) concerns whether this obligation rests only on beit din (Ketzot) or whether every person is obligated to coerce his fellow to fulfill commandments (Netivot).

Coercion as Punishment

I noted that, simply put, coercing someone to perform a mitzvah is not punishment. Punishment is always administered after the offense, whereas coercion is done beforehand. The aims also differ, of course: punishment is retribution for the offense; coercion aims to ensure fulfillment or to prevent the offense. Punishment has a fixed measure defined by the Torah (and the Torah even warns to estimate how many lashes the offender can bear), whereas coercion is entrusted to our discretion and has no fixed measure (whatever is needed to ensure fulfillment). It is therefore reasonable that these are indeed two different actions. Still, we saw above that the Gemara’s phrasing suggests some connection between them. And according to the Ketzot, it sounds like the coercion is a punishment, hence it can only be administered by a beit din (though Rabbi Weiss is unwilling to accept this possibility and therefore interprets him otherwise). But Rabbi Weiss himself brings several commentators whose words imply that the coercion is a kind of punishment.

Rabbeinu Yonah in Sha’arei Teshuvah, Gate 3, at the beginning of §11, writes (Rabbi Weiss there notes that the author of Sefer Chareidim writes similarly):

Now let us speak about the matter of punishment for nullifying a positive commandment. Our Sages said (Chullin 132b): If they warn a man to make a sukkah or [to take] a lulav and he does not do it, they strike him until his soul departs…

His wording implies that he views coercion to perform mitzvot as the punishment for neglecting positive commandments.

He also brings from Chemdat Yisrael that understood the view of the Yere’im (mitzvah 164) as seeing coercion as punishment, since he writes:

And if the lender does not wish to say, “I remit [the debt],” beit din shall coerce him, as taught in Ketubot (86a) in the chapter HaKotev—regarding repayment of a debt being a mitzvah—that if he says, “I do not wish to perform a mitzvah,” what is the law? He said to him: When do these words apply—regarding negative commandments; but with positive commandments, such as one who is told “Make a sukkah” or “[Take] a lulav” and he does not do it—they strike him until his soul departs.

And it seems to me: these matters apply only in a beit din in the Land of Israel; but in a beit din outside the Land, they are not permitted to coerce him with striking, for that which it states “they strike him” is a fine (kansa); and any monetary fines are not adjudicated outside the Land, for we do not adjudicate monetary fines outside the Land—except in a matter that is frequent and entails financial loss, as stated in Bava Kamma (84b) and Gittin (88b). And this is not frequent.

We see that striking to induce fulfillment is a fine; therefore it is done only by a semuchin beit din.

The Gemara in Menachot 41a states that for neglecting tzitzit there is punishment “in a time of wrath.” And the Tosafot there s.v. anashteihu write:

“I punished him [for an aseh like this]” [meaning: a person is not obligated] to purchase a garment that would require [tzitzit] if he does not have one; but for a full aseh, even a lower court would strike him until his soul departs.

In any case, it appears that, according to them, striking one who does not fulfill a positive commandment (which exists only with a “full” aseh—i.e., an affirmative obligation and not a conditional one; see definitions in column 417) is a punishment; no wonder Tosafot also hold that this is done by a beit din. And indeed the Griz (R. Yitzchak Zev Soloveitchik) in his stencil there wonders: what does coercion to perform mitzvot have to do with punishment?

So too we find in Ramban on the Torah (Exodus 20:7):

The punishment for negative commandments is severe, and we render judgment therein—such as lashes or death; but we render no judgment for positive commandments at all, except in cases of rebelliousness, such as [one who says regarding] lulav and tzitzit: “I will not do [them],” “I will not make a sukkah”—they strike him until he accepts to do, or until his soul departs.

One could force his words to mean that indeed for positive commandments there is no punishment, only coercion. But the plain sense is that this too is a kind of punishment—especially as he adds “they strike him until his soul departs (and indeed until, inclusive),” and as I noted above, it is unlikely to strike “until death” if the purpose is merely to ensure performance.

The Difficulty

There, Rabbi Weiss takes for granted that no punitive element is present and presses all the sources brought here—which imply punishment—in order to uphold his thesis. He cites the Ohr Sameach on Rambam, Rebels 4:3, who writes:

For if we know that even through coercion he will not fulfill [the mitzvah], it is absolutely forbidden to strike him at all, for there is no punishment here—only distancing from transgression and [the law of] arevut to ensure the mitzvah’s fulfillment.

And indeed it is the accepted assumption that coercion to perform mitzvot is not punishment. Yet the sources above seem plainly otherwise, and Rabbi Weiss’s proposals are strained. When I read this, I thought the assumption is not so simple, and I will now propose a punitive understanding of coercion to perform mitzvot.

The Law of a Pursuer (Rodef)

The basic consideration leading to the view that coercion is not punishment is the general difference between prohibitions and positive commandments regarding punishment: there is no punishment for neglecting a positive commandment. If so, coercion to fulfill a positive commandment cannot be punishment. If there were punishment for a positive commandment, we would expect it first to be administered after he neglected it. Moreover, even if there were punishment for a positive commandment, coercion is not punishment, for punishment is not administered before the offense. For prohibitions that do carry punishment after the fact, we do not punish beforehand. Even if there is coercion to prevent violation of a prohibition (a matter disputed by the poskim), that certainly is not punishment.

This difficulty points us toward a possible resolution. Consider the law of a pursuer (rodef). One who pursues his fellow to kill him—we are commanded to kill the pursuer to save the pursued. The conventional view is that this is not punishment but prevention of the offense. Yet some sources may be read otherwise. A small step in that direction appears in Sanhedrin 74a:

Scripture compares a murderer to a betrothed maiden [being assaulted]: just as for the betrothed maiden—he may be saved with [the attacker’s] life, so too a murderer—he may be saved with [the murderer’s] life.

We are used to understanding the law of rodef as intended to save the pursued. But if that were the understanding, we would expect the formulation, regarding the betrothed maiden, to be “she may be saved with his life,” not “he may be saved.” Here it is clear that the aim is to save the pursuer from sin. Accordingly, with respect to the murderer, killing the pursuer is to save the pursuer from the sin of murder, not to save the pursued. The entire sugya there (73b–74a) speaks of a Sabbath desecrator, idolater, one pursuing an animal, etc.—whether “he may be saved with his life”—and in these cases it is obviously the pursuer who is being “saved” (for there is no pursued party).

And Rashi there writes this explicitly in several places; for example, on 74a s.v. d’khtiv. Most clearly, he writes this on the mishnah at 73a:

These are [those] whom we save with their lives: one who pursues his fellow to kill him, [one who pursues] a male for sodomy, and [one who pursues] a betrothed maiden. But one who pursues an animal for bestiality, or wishes to serve idolatry, or to desecrate the Sabbath—we do not save them with their lives.

Here it is already clear that the reference is to saving the pursuer, not the pursued. One might argue that since the mishnah concludes that we do not save a Sabbath desecrator or idolater, the conception shifts and we understand it as saving the pursued; therefore, where there is no pursued party, we do not “save.”

But Rashi on the mishnah writes otherwise:

“Those whom we save”—from the transgression.

“With their lives”—they are given to be killed by anyone in order to save them from the transgression, and this is derived from verses.

We see that even in conclusion, the law of rodef concerns saving the pursuer, not the pursued.

So why do we not save one pursuing an animal, or an idolater? Rashi explains:

But one who pursues an animal—to copulate with it; and one who wishes to serve idolatry, and to desecrate the Sabbath; and all the more so the other offenses punishable by karet and capital punishment that are not in the category of sexual immorality: we do not save them with their lives, except in matters of sexual immorality which involve shame and disgrace to the pursued—such as [pursuit of] a male or a betrothed maiden…

That is, the law of rodef indeed aims to save the pursuer from transgression, and we refrain from saving in cases of bestiality and idolatry because saving the pursuer applies only where there is shame/disgrace to the pursued. At first this seems inconsistent: is the law of rodef to save the pursued from shame, or to save the pursuer? It seems from Rashi that it is to save the pursuer, but we act only where there is shame to the pursued.

So far we have seen that one can understand the law of rodef as intended to save the pursuer from sin. That, of course, does not yet make it punishment; it is prevention of transgression.[1]

However, later in the Gemara there (74a) we find the following law:

Rava said: A pursuer who was chasing his fellow, and [in the process] he broke vessels—whether belonging to the pursued or to another—he is exempt [from payment]. What is the reason? He is liable with his life [i.e., for death],…

A pursuer who breaks utensils and causes damage is exempt from paying. Why? Because he is “liable with his life,” and halacha contains the principle of kim lei bederabba minei (KLBDRM): one who is liable to capital punishment for an act is exempt from monetary liabilities arising from that same act.[2] It would seem from here that killing the pursuer is punishment; otherwise KLBDRM would not apply. The Griz on the Rambam already argued at length from here that in the law of rodef there are two elements: saving the pursued, and that the killer of the pursuer is not liable for blood. But in Afikei Yam II §40 it is argued at length that the second element is indeed punishment—i.e., that the law of rodef has a punitive dimension. The pursuer is killed because he is liable to death as a murderer; his killing constitutes the execution of a death sentence.

To be sure, it is quite implausible to see the law of rodef as execution of punishment, for the offense has not yet been committed and the “rescuer” is not a beit din. How can one punish before the crime, and how can the authority to punish be given to any bystander rather than to a court?

The straightforward explanation is this: if the pursuer carries out his intent, he will be liable in the future to death as a murderer. Therefore, halacha grants authority to anyone who witnesses a pursuit to kill the pursuer without a court and even before the offense, in order to save the pursued. If he were not deserving of death, we would not allow killing him to save the pursued; and if there were no pursued party, we would not allow killing him absent a crime and absent a court. But there is no sense in waiting for him to kill and then bringing him to court to execute him—for then both the pursuer and the pursued would die. Hence permission is given to the rescuer to carry out the death penalty without a court and prior to the offense. Bottom line: the law of rodef is the execution of punishment, but done in an unusual manner and without the usual conditions, in order to save the pursued. This seems to be Rashi’s intent above: we kill the pursuer to save him from sin, but only where there is shame/disgrace to the pursued. I noted an apparent contradiction, but we can now understand that saving the pursued justifies early execution of punishment without a court. Where there is no pursued party, we will not execute punishment absent a crime and absent a court; hence there is no law of rodef for idolatry or Sabbath desecration. By the same token, for offenses not carrying the death penalty there will be no law of rodef, for the punishment is not death and there is no justification to kill the pursuer as premature punishment for his future offense.[3]

Back to Coercion: Punishment Before the Offense

Above we struggled with how coercion could be punishment when the offense has yet to occur. From the law of rodef we see that halacha does recognize cases where punishment precedes the offense. Still, a difficulty remains: rodef applies only to offenses that carry punishment, whereas neglect of a positive commandment carries no punishment at all—even after the fact. How then can coercion to perform an aseh be considered punishment, when an aseh does not carry punishment in beit din?

Back to Coercion: Punishment for Aseh vs. for Lo Ta’aseh

To explain this, we must revisit why, indeed, there is no punishment for neglecting a positive commandment. What is the difference between an aseh and a lo ta’aseh in this respect? I propose a novel explanation. My claim is that in principle there ought to be punishment for neglecting a positive commandment as well; however, there is no point in actually administering it, since even if we punish the person for neglecting the aseh, nothing is thereby repaired. In the end, he has not fulfilled the commandment. By contrast, a prohibition creates a spiritual blemish (in the world or in the person), and punishment repairs it in some way (on punishment as repair see here and here). Therefore, for prohibitions there is sense in punishing after the violation, because punishment repairs the blemish created by the offense. But with an aseh, although one who neglects it is indeed an offender who deserves retribution, we do not actually punish him because doing so has no practical value.

A similar distinction exists in halacha regarding compulsion in offenses. The rule is that one who transgressed under duress bears no sin (learned from “and to the maiden you shall do nothing”). But one who failed to fulfill an aseh under duress—indeed, there is no sin, yet in practice the mitzvah has not been fulfilled. If the opportunity arises again, he must fulfill it even though he was not at fault for the earlier neglect. In the language of the Sages (following Yerushalmi Kiddushin 3:3, though there it concerns fulfillment of a condition, not offenses): “We say: compulsion counts as if he did not act; we do not say: compulsion counts as if he acted.” That is: if a person acted under compulsion, it is as if he did not act; but if he failed to act under compulsion, it is not as if he acted. True, he was coerced into inaction, but the bottom line is that the act was not performed. I propose a similar concept here: there is no point in punishing someone for neglecting an aseh, for punishment will not repair the situation.

If so, then when we see someone about to neglect an aseh (“one who says: I will not make a sukkah”), there is indeed room to punish him even though no punishment is imposed for neglect after the fact. In a situation where a person is poised not to fulfill a positive commandment, the punishment will repair matters, for it will bring him to fulfill the mitzvah and prevent the failing. We punish in advance because, specifically for positive commandments, punishment prior to the offense can correct the situation.

This may also explain the views that deny coercion for prohibitions. When a person is about to violate a prohibition, nothing irreversible is necessarily occurring; we can wait and punish after he transgresses, since for prohibitions the punishment repairs the situation even post facto. Only in the special case of a pursuer do we punish before the offense in order to save the pursued. In contrast, for an aseh, punishment before the act always corrects the situation. Perhaps this is what the somewhat obscure words of the Chavot Yair above mean, where he explains why coercion applies only to positive commandments and not to prohibitions:

For regarding a prohibition, if he has not yet transgressed—even if he seeks to do so—he still lacks a [completed] act, and perhaps he will desist if warned; and if he transgresses, he will receive his punishment—what more should we do, for what has been done has been done? Not so with a positive commandment: by sitting idle he is already transgressing, and we strike him in order to bring him to fulfill it.

Rabbi Weiss wonders at this, noting that in both cases it is possible he will ultimately not transgress, or will ultimately fulfill the commandment. It seems the intent is that with a positive commandment, every moment he refrains from fulfilling it, by his very sitting, he is in prohibition; hence striking is justified. With a prohibition, the transgression occurs only upon the act. If this is his intent, then it is apparent that the striking is punishment for having transgressed, and thus justified only once he is already liable. Rabbi Weiss cannot accept such an approach and therefore does not understand his intent. According to my approach, we need not go so far as to say that every moment of sitting idle constitutes actual negation; as we saw, punishment may sometimes precede the offense, provided it is beneficial.

Note that on our approach the words of the Ohr Sameach remain valid, but for a different reason than he states. He is correct that we do not coerce where there is no chance the person will ultimately fulfill the mitzvah—not because coercion is not punishment (as he himself explains), but precisely because it is punishment, and this particular punishment is administered only where it has value and will lead to some repair, as above. In any case, “until his soul departs” must be understood as “until,” not literally “until and including [death],” even if coercion is punishment, for the punishment is given only for a benefit; if he dies, there is no benefit. Perhaps, however, according to the approach here one could say that since we are already punishing before neglect of the aseh to bring about future benefit, we do not desist even if he stubbornly refuses to fulfill the mitzvah, and we strike him “until his soul departs.” Remember that the premise here is that, in principle, a person deserves punishment even for neglecting a positive commandment.

The Distinction Between an Obligatory Aseh and an Existential Aseh

In columns 415–416 I discussed the difference between prohibitions and positive commandments. The starting point was a difficulty with the common definition of their difference. We tend to think the difference is whether the command is to do something or to refrain. But this does not withstand the facts, for there are quite a few positive commandments that command us to desist (e.g., the aseh to rest on Shabbat or to afflict oneself on Yom Kippur), and quite a few prohibitions that command us to act (e.g., “Do not stand by your fellow’s blood,” “Do not bring blood upon your house,” and others). I explained there that the difference is otherwise: with a positive commandment, the Torah points to a desired state in which it expects us to be; with a prohibition, it points to an undesired state from which we must refrain. Either state may entail action or refraining; hence there is no necessary link between “aseh” and action, nor between “lo ta’aseh” and desistance.

I explained there that this implies a spiritually neutral baseline. Relative to it, a positive commandment tells us to be righteous—i.e., to rise above it (to do something that will bring us to a positive state); a prohibition tells us not to descend from it to a negative state. From this I explained why punishment is administered for prohibitions but not for positive commandments: punishment is for something negative; we do not punish someone for not having been righteous. But this explanation fits only an “existential” aseh. In such a case, there is nothing wrong in failing to fulfill it, for that is not a negative state; one simply did not attain a positive state, and we do not punish for that. Most asehs, however, are “obligatory,” and there, failure to perform them constitutes a negative state. It is no accident that neglecting a positive commandment is a kind of transgression. I explained there that indeed there is transgression, yet it is a transgression of not being in a positive state; therefore we still do not punish for it. But a lack of clarity remained between an obligatory aseh and an existential aseh, for in both I am not in a positive state. Why, then, are there cases where neglect is a transgression (obligatory aseh) and cases where it is not (existential aseh)?

In light of what we have seen, we can perhaps complete the picture. At first glance, the explanation proposed there contradicts what I propose here: there I said we do not punish for an aseh because we do not punish for not being righteous; here I said that, in principle, punishment is due for an aseh, but we do not administer it because it yields no practical benefit. What is the relationship between these two explanations?

This brings us back to the difference between an obligatory and an existential aseh. The explanation given there for why we do not punish fits only the existential aseh. But for the obligatory aseh, its neglect is a transgression; therefore, in principle, punishment is due. Here the present explanation enters: indeed, punishment is due for neglect of an obligatory aseh, but there is no point in giving it after the fact, for it will not return us to the desired state—practically, the mitzvah has not been done and the person has not reached the desired positive state. Therefore, such punishment is given only before the neglect, where its purpose is to ensure fulfillment; only then is there benefit. Thus, the present explanation completes the picture given there. We have seen that for an obligatory aseh there is a transgression, and in principle punishment is due; yet the transgression is “not being in a positive state,” and punishment for it will not bring one into that state. Hence even for an obligatory aseh, where punishment is in principle due, there is no reason to administer it—except when we see someone about to neglect it; then striking him is indeed meaningful to bring him to fulfill his duty. For an existential aseh, no punishment is due at all; therefore, even beforehand we would not strike one who is about to refrain (for there is no justification to strike merely to make someone fulfill a mitzvah if he would not have been liable for punishment upon neglect).

The conclusion is that an existential positive commandment is indeed a positive commandment in every respect, and according to some Rishonim (e.g., the Raavad at the beginning of his commentary to the Sifra) it even overrides a prohibition. Nevertheless, coercion to fulfill it will not apply, for its neglect does not incur punishment; consequently, there is no justification to strike someone merely to ensure fulfillment—absent liability for punishment upon neglect. With an existential mitzvah there is fulfillment but no “negation”; therefore punishment does not apply, and likewise there is no justification to strike him to make him fulfill it.

[1] Incidentally, a question arises from the law of coercion: if, indeed, to prevent a person from transgression one must strike him “until his soul departs,” that would imply a law of rodef for all offenses, not only for murder and sexual immorality—also for Sabbath desecration, and even for a prohibition not incurring death, such as eating pork. This would seemingly support the view that coercion applies only to positive commandments and not to prohibitions. For those who disagree, the matter requires analysis.

[2] True, here it concerns a different act (pursuit to kill, vs. breaking someone else’s utensils). The Gemara there indeed discusses a case of liability for payment in one respect and death in another; this is not the place to elaborate.

[3] I must note that the conception presented here seems problematic, for in practice there is a law of rodef even for a minor pursuer who is not liable to punishment, and for an unwitting pursuer, etc. I will not enter that here.