On Repentance in an Earthly Court (Column 91)

With God’s help

This Sabbath, Shabbat “Shuvah,” I spoke in the synagogue about the issue of repentance in an earthly court, and I thought it worthwhile to present the main points here.

In an article I wrote, I pointed out that it is commonly assumed that repentance does not help in an earthly court (the basic source for this rule is the Mishnah in Makkot 13b, especially Rashi and Nachmanides in the Milhamot there). Yet the explanation of this rule is unclear, since the Sages and the commentators in many places stress that repentance returns us to the state before the sin. In the haftarah for this Sabbath we read that we return all the way to the Lord our God (“to the Lord our God”) (see Yoma 86a). Maimonides tells us that after repentance we move from being distant from the Holy One, blessed be He, to being beloved and close to Him as at first (see ch. 7 of the Laws of Repentance). So why, in fact, does repentance not help free a person from punishments imposed by an earthly court?

In my article I discussed several directions offered by the commentators to resolve this difficulty. Some of them (such as the Chida) argued that since repentance takes place in the heart, the court has no way of knowing whether the person has performed full repentance. But this line is problematic, for at least two reasons: a. even if we cannot know with certainty that this is indeed complete and genuine repentance, doubt still remains. The court still cannot punish in such a situation. b. In the Talmud and in all the halakhic decisors (see the Shulchan Arukh and its commentaries, Choshen Mishpat sec. 34) it is explained that a court can determine that a person has repented for the purpose of restoring a wicked person to eligibility for testimony and judging. So why should such a determination not suffice with respect to exemption from punishment?! Moreover, a court must make quite a few determinations concerning what takes place in a person’s mind (such as preparedness for accepting commandments in conversion, intention in committing transgressions, and more). True, a court can err, but the Torah was not given to ministering angels. On the face of it, a court’s determination ought to suffice to exempt a person from punishment. Others (such as the Noda B’Yehuda Orach Chayim sec. 35) argued that if we forgo punishment for penitents, everyone will escape punishment and we will empty the Torah’s penal laws of content. Here too it is hard to accept that if there is a genuine penitent we will punish him for such a consideration. On the contrary: let all offenders undergo complete repentance and let us exempt them. Is that what we fear? And again, the claim that one can deceive the court and create a false appearance of repentance is unpersuasive, for it is the court’s role to examine whether full repentance has in fact taken place, and it is capable of doing so. If full repentance has indeed occurred, there is no reason not to forgo the punishment. On the contrary, reason suggests that we should.

Indeed, at the end of my article I noted that in the responsa Beit She’arim, Orach Chayim sec. 294, it is written that repentance does help exempt one from punishments of the court (at least when it is accompanied by suffering; this is how he resolves the difficulty from the Mishnah in Makkot 13b). Since I wrote those pieces, I have found several further proofs that repentance can indeed help exempt even from court-imposed punishments, and I will touch on some of them here briefly, together with one additional, more fundamental and general aspect.

One Who Admits Liability for a Fine, and Witnesses Later Arrive[1]

As is known, one who admits liability for a fine is exempt. The difference between a fine and an ordinary monetary obligation is that a fine is a monetary punishment for the payer, not compensatory payment or a debt owed to the recipient. On its face, one who admits liability for a fine is exempt because confession is not enough to make a person liable for punishment (somewhat akin to the rule that a person cannot render himself wicked, that is, self-incrimination is not admissible in Jewish law).

However, on this basis it is difficult to understand the dispute among the amoraim concerning one who admits liability for a fine and witnesses later arrive (see Bava Kamma 74b). The amoraim disputed the law in the case of someone who admitted liability for a fine and only afterward two witnesses arrived to testify that he indeed owed the fine. In practice we rule like Rav that even in such a case he is exempt. This is, on its face, very puzzling, for even if the confession is insufficient to impose liability, let him be held liable on the basis of the witnesses’ testimony.

The later authorities explain that according to this view the confession not only does not impose liability, but actually exempts. What is the rationale for that? I once heard a certain judge, speaking offhandedly, suggest that perhaps this is a matter of forgiveness and waiver for a penitent. At first glance I was inclined to chuckle at this homespun, unscholarly suggestion, but on second thought I realized that it is actually very interesting. If we regard the person who comes and confesses as a penitent (for otherwise why did he confess?), then one can understand why the confession exempts and not merely fails to obligate. After he has repented and we have forgiven him, then even if witnesses later come there is no reason to fine him.

Indeed, the Talmud says that if he confesses after he hears that witnesses are on their way, he is not exempt from the fine. According to our approach this is understandable, for here the confession stems from fear of punishment and not from genuine repentance. We forgive a genuine penitent, but not every formal confession has exculpatory force.

One Who Admits to an Offense, and Witnesses Later Arrive

In note 2 to column 84 I wondered whether this conception ought not to be extended to all punishments. If a person comes and admits that he committed an offense punishable by lashes or death, the rule is that a person cannot render himself wicked (see Sanhedrin 9b and parallels), that is, his testimony is not accepted. What if afterward two valid witnesses come and testify that he indeed committed the offense? Again, on its face, here we would surely accept their testimony. True, his confession has no power to obligate him, but it does not exempt him. Yet according to my suggestion above, there may be room for the argument that with respect to all punishments, confession expresses complete repentance and therefore exempts from punishment. Just as with a monetary penalty (a fine), so too with corporal punishments. See there in the comments (with Moshe) the discussion whether this extension is correct; the conclusion seems to be that it depends on a dispute among the amoraim and the medieval authorities as to whether a confession that exempts must also obligate him in something.

However, the Talmudic rule a person cannot render himself wicked apparently speaks of the inadmissibility of testimony and not of pardon. If what is at issue is pardon because of repentance, then a person’s testimony about himself is in fact accepted, except that he is not punished because he has repented. As noted, this is not what emerges from the language of the Talmud. But it may be that there are two distinct rules here: 1. inadmissibility—a person is not believed to render himself wicked. 2. exemption from punishment because the confession constitutes repentance. The implication is for a case in which witnesses later arrive: there we would certainly accept the testimony, but by virtue of rule 2 we still would not punish him.[2]

Conclusion: Repentance Exempts from Punishments Imposed by an Earthly Court

In any event, our discussion raises the possibility that complete repentance can exempt a person from punishment in an earthly court. This move is even more far-reaching than the above-mentioned position of the author of Beit She’arim, for here I am claiming it even with repentance alone, without suffering. But if so, the statements of the Mishnah in Makkot 13 and of Rashi and Nachmanides there, from which it clearly emerges that repentance does not help with punishments imposed by an earthly court, still require examination.

In another article on this site I distinguished between two mechanisms of repentance. One is repentance according to the rules, which includes four stages: abandoning the sin, remorse, resolve for the future, and confession. This is formal halakhic repentance, and it is effective for each sin regarding which it is performed. By contrast, there is a process of profound inner reversal: the person becomes someone different from who he was when he sinned. This is a great and essential repentance, and it is effective even without fulfilling the formal requirements, for all sins together. The Maharal ties these two kinds of repentance to two attributes from the list of the thirteen attributes of mercy: the Lord, the Lord—this is the great repentance; and He cleanses—this is the formal halakhic repentance.

According to this, one can perhaps distinguish and say that if we are dealing with formal repentance, then it really helps only in the heavenly court. I explained in that article that this is an act of grace that departs from the rules of law, and it is no wonder that in an earthly court such a thing is not done. But the great and essential repentance grants pardon as a matter of law and not of grace (see there), and therefore it is effective even in an earthly court. If indeed we are dealing with such complete repentance, the explanation of the Noda B’Yehuda above for why repentance does not exempt from punishments of the court is not really relevant. If genuine and complete repentance has indeed taken place, there is no reason at all not to forgo the punishment. On the contrary, let all offenders repent and be exempted.

Scholars versus Practical Jurists

Beyond all the proofs, there is one argument that raises a more general and principled aspect of the discussion. The Mishnah at the end of the first chapter of Makkot (7a) states:

Rabbi Tarfon and Rabbi Akiva said: if we had been on the Sanhedrin, no one would ever have been executed. Rabban Shimon ben Gamliel said: they too would increase bloodshed in Israel. (Rabbi Tarfon and Rabbi Akiva said: if we had been on the Sanhedrin, no one would ever have been executed. Rabban Shimon ben Gamliel said: they too would increase bloodshed in Israel).

The Talmud there explains that Rabbi Akiva and Rabbi Tarfon would ask the witnesses whether they knew if there had been a perforation in the victim’s body precisely where the murderer’s sword entered (a perforation at the place of the sword). If there had been such a perforation, then the murderer killed a tereifah (a mortally defective person), and he is exempt from death; even so slight a possibility suffices to prevent us from carrying out the punishment.

What is their disagreement with Rabban Shimon ben Gamliel? It appears that the basis of the disagreement is that Rabbi Akiva and Rabbi Tarfon did not sit on the Sanhedrin. They were what in today’s legal world are called “scholars,” that is, legal scholars rather than practicing jurists. Scholars can sit in the study hall and propose brilliant arguments and reach any conclusion they like. But Rabban Shimon ben Gamliel, as head of the Sanhedrin, was responsible for an effective and deterrent penal system (lest bloodshedders multiply in Israel), and therefore he argued that their arguments were good for the study hall but cannot and should not be implemented in life.

In another article I brought two additional examples of the distinction between the discussion of theoreticians and that of practitioners: the advantage of the discrediting witnesses over the original witnesses, and the disqualification of relatives. Let us consider them one by one.

A. The Advantage of the Discrediting Witnesses

When there are two witnesses who testify X and two others who testify not-X, that is a contradiction (“two against two”). But if there are two witnesses who testify X and two others who testify that the first pair are liars (because they were not in that place at that time to have seen the act), this is not contradiction but discrediting, and here the latter pair are believed.

The Talmud (Sanhedrin 27a) states that according to Rava, a conspiring witness is a novelty—that is, a scriptural decree—and therefore he is disqualified from the moment he was shown to be false, not from the moment he testified. Abaye disagrees and disqualifies the witness from the moment he testified. In practice, we rule like Abaye in this topic (this is the ayin of ya’al kagam). But even in Abaye’s view, Maimonides writes that this is a scriptural decree, since the latter witnesses have no advantage over the former. In principle, the law should have been the same as in an ordinary contradiction of two against two.

In my article I pointed out that the later authorities tend to understand Maimonides (against the Tur and some other medieval authorities) to mean that this is in fact truly a case of two against two, and the advantage of the latter pair exists only by scriptural decree. But, as I explained there, this cannot be said. For on that basis it would follow that we can execute the first two witnesses even though there is in fact a 50% chance that they are right and the latter pair are lying. The first pair fulfill their halakhic obligation and come to give truthful testimony about what they saw, and then two liars arrive and by scriptural decree we kill the first pair. There is no doubt that this is utter nonsense and cannot be. I explained there that it is clear that even according to Maimonides, the latter pair really are more credible than the former (even though, in his view, this is still called a scriptural decree because it conflicts with various halakhic rules). The explanation that according to Maimonides this is a scriptural decree can be said in the study hall by “scholars.” A judge sitting in judgment would not put two people to death when he has a 50% doubt whether they deserve to die. This is the difference between the theoretical consideration of a scholar and the consideration of a person serving in a judicial role who bears responsibility for what happens. Beyond the responsibility, he is the one who must decide to kill a person standing before him who is probably innocent.

B. Disqualification of Relatives

From the Talmud it emerges that the disqualification of relatives (whether the two witnesses are related to one another or whether they are related to one of the litigants) is a scriptural decree, meaning that they are in principle believed but the Torah decreed that their testimony is not to be accepted. A number of halakhic decisors write this explicitly. For example, Maimonides in the Laws of Testimony, ch. 13, halakhah 15, writes:

The Torah did not disqualify the testimony of relatives because they are presumed to love one another, for one does not testify for him either to his benefit or to his detriment; rather, it is a scriptural decree. Therefore, one who loves or hates is valid for testimony, even though he is disqualified from serving as a judge, for the Torah decreed only concerning relatives.

The assumption is that a person does not sin when there is nothing in it for him—that a person does not sin except for his own benefit; in other words, a person does not lie except for himself. The Torah decreed the disqualification of relatives for some other reason (not lack of reliability).

Students in the study hall are accustomed to letting this pass without much notice. There are scriptural decrees, and not everything can be understood. Fidelity to Jewish law requires obedience even when we do not understand. But if we consider the following two cases, we will see how strange and even far-fetched this is.

The standard case is one in which two related witnesses come and testify that Reuven murdered Shimon. We do not accept their testimony, and therefore Reuven is not put to death by the court. Notice that the relatives’ testimony is considered reliable; that is, the truth is that Reuven killed Shimon, but there is a scriptural decree not to accept the testimony and not to punish Reuven. Fine—that is not so terrible. At worst we have exempted the guilty from punishment, and the Holy One, blessed be He, will settle the account with him. But what are we to do in another case, where there are two valid witnesses who testify that Reuven murdered Shimon, and now two relatives come and discredit them? According to formal law we cannot accept the testimony of the discrediting group, since they are relatives, and therefore the testimony of the first group remains in force. The conclusion is that Reuven is to die as a murderer. Yet again, if the assumption is that there is no problem of reliability with relative witnesses, and if we add what we saw in the previous section—that the latter witnesses are more reliable than the former—what follows here is that we would execute an innocent person. The witnesses who testified against Reuven are liars (as emerges from the testimony of the relatives who discredited them), and nevertheless there is a scriptural decree to kill Reuven.

I spoke with quite a few people, and almost all of them thought that this is indeed what the law says, and therefore this is what the court should do. I argued that a judge who would execute Reuven in such a case should be removed from office immediately. More than that: I have no doubt that if we were discussing this in the framework of an actual judicial proceeding rather than as a theoretical discussion of “scholars” in the study hall, no normal judge would execute an innocent person. These far-fetched arguments can be made only by scholars in the study hall, but those who would actually carry them out would know perfectly well that standing before them is an innocent person, and they would be murdering him for no wrong of his own. There is no doubt that any judge in such a situation would find a way to avoid it and would not do it. I say this without entering the halakhic reasoning. It may be that he would invoke the law of a tainted case[3] (a suspicious or tainted case) or some other device, but the bottom line would be that Reuven would go free.

So What Is the Explanation?

The first example concerns the theory of Jewish law, but in the second example, I contend, there are practical consequences. The judge is supposed to acquit Reuven even though the law clearly states that he is liable to death. What explains such an approach? Is the judge not bound by the law? After all, the Torah really does disqualify relatives as witnesses. Can a judge simply do whatever he wants?

There is no escaping the conclusion that the rules of Jewish law do not apply where the truth is already clear to us even without them. The rules of testimony are intended for a situation in which the truth is not clear to us, and then Jewish law instructs us what we are to do. Some of these instructions are formal and some substantive. But when the truth is clear to us, it is unreasonable to use the formal rules in a way that so radically betrays it (to execute an innocent person, even if there is only a 50% chance that he is innocent). If it is clear to us that he is innocent, no rule can instruct us to regard him as guilty. There is no such thing, and it is unthinkable. One must understand that the verse itself states that the discredited witness is executed because he has testified falsely against his brother—that is, because he is guilty of being a liar. A liar is one who does not speak the truth. There cannot be a scriptural decree that determines concerning a truth-telling person that he is considered a liar, and we would then execute him for his lies.

Back to the Question of the Status of Repentance with Respect to Court-Imposed Punishments

Suppose I am sitting in judgment and a man comes before me who desecrated the Sabbath deliberately, in the presence of witnesses and after prior warning. According to Jewish law, such a person is liable to death by stoning. Now it becomes clear to me beyond doubt (Elijah the Prophet came and told me this) that he has done full and complete repentance of the essential kind described above. Is it conceivable that I would sentence him to stoning as a Sabbath desecrator? For now a purified person stands before me. He really has changed. I am, in effect, shedding innocent blood. True, he committed a grave transgression, and he did so in the presence of witnesses and after warning. And yet my reason tells me that killing such a person is out of the question.[4]

My claim is that if a person has undergone formal repentance, he has not truly changed and is not truly clean. The Holy One, blessed be He, deals with us mercifully and accepts even repentance of that kind, but an earthly court operates according to the strict parameters of law. It is about this that the Talmud in Makkot says that such repentance does not help exempt one from punishments of the court. But if the offender has done essential and complete repentance—that is, he truly changed and became a different person—then here he is exempt from punishment as a matter of law itself, and therefore this is valid even in an earthly court. “Scholars” can of course debate and analyze this question at great length for years on end, but a judge sitting on the bench who must decree the punishment of that righteous man will not do it. A judge who is expected himself to kill this offender will not ask the question. Even if he has no clear rationale—in practice he will not kill him. This seems to me clear, at least with regard to the death penalty, which is extreme and irreversible.[5]

However, this discussion assumed that it is known to me that the person has done complete and essential repentance. For a flesh-and-blood judge it will be difficult to know with certainty (without Elijah the Prophet) that this is indeed the case. But as I noted above, flesh-and-blood judges make decisions of this kind in various contexts, and there is no reason that even in a case where the judge has become convinced, by his own tools, that a genuine penitent stands before him, despite the doubts he may still have, he should nevertheless execute him.

In sum, the question we dealt with here too can perhaps be discussed on the theoretical plane, but practically it seems to me that one who actually sits on the judge’s seat and must make practical decisions will not really hesitate about it. If a murderer of this sort came before me after full and complete repentance, I certainly would not kill him. Perhaps I would even use the theoretical reasoning of Rabbi Akiva and Rabbi Tarfon to implement what it is practically right to do in such a case. One way or another, it is highly implausible to kill a righteous person.[6]

[1] See column 84, note 2, and the discussion in the comments—at the beginning of the discussion with Yitzhak and near its end with Moshe.

[2] I should note here that the rule a person cannot render himself wicked appears in the Talmud in Sanhedrin in the context of splitting a statement. A person comes and testifies together with another witness: “So-and-so lent me money at interest,” or “So-and-so had sexual relations with me with my consent.” In both these testimonies he renders himself wicked and is therefore not believed. But in practice we rule like Rava that although he is not believed about himself, he is believed about the other party (together with the other witness). The difficulty is obvious, for if the testimony is not accepted we should have rejected all of it. But according to our approach perhaps there is room to say that he is believed even about himself, and therefore it is no wonder that he combines with another witness to testify about the other. Only the punishment is not imposed on him, because his confession exempts him as a penitent. Admittedly, this is not the plain meaning of the Talmud, for as noted it speaks of inadmissibility and not merely exemption from punishment. Still, it seems to me that there may be room to press this interpretation.

I would add further that according to the Ra’avad, cited by several medieval authorities (such as the Rosh on Makkot 7a and others), we do not apply splitting to the testimony of a relative, but only to a person’s testimony about himself. Other medieval authorities, however (see another explanation in the Rosh there), disagree with him, and in their view splitting applies to relatives as well. When a relative testifies about his relative, there is certainly no act of repentance here, and therefore it is clear that in such a case the discussion concerns only inadmissibility of testimony and not pardon. That is, even according to the positions that do apply splitting to relatives, if later another two witnesses come to testify against the witness who incriminated himself, certainly the testimony will be accepted and punishment will also be imposed on him.

[3] Admittedly, the law of a tainted case is not applicable here, because the discrediting occurs after Reuven has already been sentenced on the basis of the first witnesses. At that point there is no longer any room to step aside.

[4] I am willing to concede that here the matter is less unequivocal than in the examples above; still, it seems to me that reason points toward exempting him.

[5] On this matter, it is interesting to note what Aharon Shemesh wrote in his book Punishments and Sins: that capital punishments were not actually practiced in any period of the history of Jewish law (I am not sure that I agree with this scholarly conclusion. There is some evidence against it, but this is not the place).

[6] See the discussion at the beginning of the article above about the two mechanisms of repentance. There I pointed out that if a person who on Rosh Hashanah is in the intermediate category performs further commandments during the Ten Days of Repentance and thereby becomes righteous, it is not plausible that his fate would be sealed for death on Yom Kippur. After all, on Yom Kippur he is in the state of a righteous person, and it is not plausible that the Holy One, blessed be He, would seal a righteous person to death on the ground that on the previous Rosh Hashanah he was merely intermediate.