Atonement and Repentance

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[Rabbi Michael Abraham] So that’s the accepted view. In the end I’ll come back to this point, because I want to challenge it a bit. But the standard answer, the accepted point, is that the Torah determines the punishments. There are no maximum punishments and minimum punishments, there’s no such thing. Meaning, every transgression has a punishment written in the Torah. Of course there are conditions: if there were witnesses, prior warning, and so on. That’s it. You have to impose it, and you can’t give less than that, and of course not more either. That’s not completely precise, but since you asked, yes, that’s the point. A religious court may administer lashes and punish not according to the strict law. That’s in section 13 in Choshen Mishpat in the Shulchan Arukh. A religious court can punish beyond the law, not according to the strict law, when it sees that the times require it, because some problem needs to be corrected. I’ll get to that. Giving less is not written anywhere. Where is that written? No, if they see that the person can’t withstand it, that is the strict law itself. The strict law is not thirty-nine lashes, but up to thirty-nine lashes, whatever he can withstand. That’s not leniency; that is the law. But I’ll talk about that. Why is it that if a religious court can punish beyond the law, it can’t waive a punishment beyond the law—or is that really true? We’ll see. So that’s really the difficulty. Up to here, that’s the difficulty. Okay? Here you can always be stringent. Yes. The accepted view is what you said before: that it’s simply not an option, because a religious court cannot know whether you repented. What does a religious court know—the depths of a person’s heart? How do they know whether he did? Anyone can say to me, “I repented,” and get out of punishment. A religious court has no tools to know that. The heavenly court—the Holy One, blessed be He—knows whether we repented or not, so He can decide to forgive us, and maybe we truly deserve to be forgiven. But—but—but what can you do? An earthly court can’t know that. The Chida, for example, and the Arukh HaShulchan, and others. Noda B'Yehuda, with some twist, says basically something similar as well. So that’s the accepted approach, because in essence this isn’t accessible to us; we can’t know whether a person repented. We’re human beings, and therefore an earthly court cannot take that into account. Right here I’ll mention two problems with that explanation.

[Speaker C] One problem: you can see that he doesn’t go back to it.

[Rabbi Michael Abraham] No, that doesn’t prove it. The question is whether he repented for the past. In a moment I’ll comment on that too. One problem: I don’t know whether he repented, right? But I also don’t know that he did not repent. So I’m in doubt. Do we punish in a case of doubt? Where do we ever find that we punish on the basis of doubt? Fine, I’m in doubt, I’m not sure he repented. But on the basis of doubt? On the basis of doubt we kill? If I’m in doubt whether he is liable for death, I kill him even though I’m not sure he’s liable at all? Does that sound reasonable?

[Speaker G] It’s not a doubt whether he’s liable—

[Rabbi Michael Abraham] —for death, but a doubt whether he deserves the punishment. So you’re already seasoned yeshiva students, and indeed it seems to me that at least within the legal-yeshivish mode of thought, you can explain this. Why? You can already hear my reservation—but it can be explained. Why? Because there’s a difference—even in loan law, as you know—between “I don’t know whether I became obligated” and “I don’t know whether I repaid you.” Meaning, if I don’t know whether I was ever obligated in the first place, then you need to bring proof to obligate me. I don’t know whether there’s any obligation at all. But if I say, listen, I borrowed, I just don’t remember—I think I repaid you, but I don’t remember, I’m not sure, I don’t remember whether I repaid you—here I have admitted that I was obligated. So first of all I’m obligated. Now I want to say: okay, but maybe I repaid? Maybe. Bring proof. Because there is a presumption of obligation.

[Speaker F] The whole “the burden of proof is on the claimant” just flips around, basically.

[Rabbi Michael Abraham] Yes, so I’m saying there is a presumption of obligation. Clearly. So there is a presumption of obligation, and now you are trying to exempt yourself. To be exempt, you need to bring proof; doubt isn’t enough. If there’s doubt whether you’re obligated, then you’re not obligated. But if there’s doubt whether you repaid, then bring proof that you repaid, because first of all it’s clear that you’re obligated. Okay? Now there’s a simple logic here, and the same thing applies here. If there’s doubt whether you sinned at all—say I’m in doubt whether these witnesses are reliable, or I don’t know, or whether this act really was a sin or could be interpreted differently, it doesn’t matter—then I’m in doubt whether any punishment is due to you at all. In such a situation I do not punish. But where it is clear that a punishment is due to you, except that if you repented then you are exempt—well, here you are only trying to exempt yourself, not avoid becoming obligated in the first place. To be exempt there needs to be certainty; doubt is not enough. Okay? That’s the claim. It has legal logic to it, but you know the Talmud says—at least regarding capital punishment—there is a law of “and the congregation shall save.” Meaning, you have to use every possible device in the world, every little trick in the world, to save a person from being liable to death. So much so that when Rabbi Akiva and Rabbi Tarfon say, “If we had been in the Sanhedrin, no person would ever have been executed.” Because if we had seen with our own eyes two valid witnesses that a person stuck a sword into another person, we would have said: wait, but maybe there was already a hole in his lung exactly where the sword entered, and in truth he would have died even without the sword. So we would not execute him. To that extent we are willing to entertain such an argument, willing to accept it in order to exempt him from punishment—and the concern that maybe he repented, that’s not enough? In other words, it’s strange.

[Speaker D] If a man says, “Be betrothed to me on condition that I am completely righteous,” she is betrothed because perhaps he repented.

[Rabbi Michael Abraham] Right. No, he becomes righteous, no problem, so what?

[Speaker D] So “perhaps he repented”—meaning…

[Rabbi Michael Abraham] Ah, you’re asking why there we don’t follow his presumption of wickedness? Okay, here’s another comment. Right, good point. Out of doubt, she is betrothed out of doubt. What? Betrothed out of doubt? Yes, yes. No, but why? There is a presumption that he is wicked. Bring proof. When there is a presumption, we don’t go stringently on the basis of doubt. When there is a presumption, we follow the presumption. And if he has the presumption of being wicked, and now you have a doubt whether he repented or not, then he is wicked; she is not betrothed. But why at all—

[Speaker F] Why are we saying that in this matter of repentance we don’t know whether he repented or not? Why don’t we give a person the opportunity to appear before the court, declare that he repented, and the court—

[Rabbi Michael Abraham] —will decide whether to believe him or not? Okay, in a moment we’ll see; maybe that is possible. Those later authorities argue: that doesn’t help. We need to see what’s in his heart. Anyone can say, “I repented.” Therefore an earthly court is not supposed to deal with this plane at all. That’s the claim; I’ll come back to it.

[Speaker F] Let him swear. What? Let him swear.

[Rabbi Michael Abraham] If he didn’t repent, he’ll swear to them about that too. What? This is a matter of saving life; he’d even be permitted to swear to that. After all, otherwise they’ll kill him. So he’d even be permitted to swear falsely about it. Anyway, that’s an interesting question, by the way. An interesting question. Desecration of God’s name. Is he allowed to swear in such a situation? Desecration of God’s name? Why is that desecration of God’s name? No one knows that I swore falsely. What desecration of God’s name is there in that? Maybe even in private there is desecration of God’s name, but it’s an interesting question. Okay, never mind, you can analyze that question too. In any event, that was the first comment. The first comment is: fine, you don’t know that he repented, but still you’re in doubt—maybe he repented and maybe he didn’t. Form the best impression you can and go by that. Fine, it can always be that you’re mistaken, but that’s always true of judges. Judges are human beings; it’s always possible they make a mistake. What can you do?

[Speaker E] Aren’t all those cases in the Torah things that never were and never will be, only to expound and receive reward?

[Rabbi Michael Abraham] Because a person can say, “I repented.” Yes, so Noda B'Yehuda adds a kind of twist on this matter, as I said; he deals exactly with that point.

[Speaker D] What did we say has to be? No, it has to be until Yom Kippur. What?

[Rabbi Michael Abraham] Judge him? Yom Kippur—not important. Why not before Yom Kippur? Why judge him before Yom Kippur? You can exempt him; wait another two days and that’s it. That’s one comment. The second comment is already one that is seemingly a real contradiction. Look in the Shulchan Arukh in the next source you have there, Choshen Mishpat section 34, halakhah 7: “A thief, and likewise a robber, are disqualified from testimony from the time he stole or robbed, and even if they returned what they took, that is not enough until they repent.” What do we see? First of all, a thief or robber is wicked; he is disqualified from testimony. If he returned it, that’s not enough—he is still disqualified. But if he repented, then it appears in the Shulchan Arukh that he becomes valid, right? As long as he has not repented, but once he repents he returns to validity. How does the court know that he repented? If it is impossible for a court to diagnose a person’s heart, then what difference does it make whether we are dealing with eligibility for testimony or with imposing punishment? Make up your mind: if the court can examine this question, then it can. If it can’t, then it can’t in any context.

[Speaker H] No, because here they are disqualified from testimony really because—if you can—it’s an impression of their reliability. Here that impression matters a lot. Meaning, I get the impression he isn’t reliable, like, I know I can’t trust what he says.

[Rabbi Michael Abraham] By the same token, get the impression that he repented. What’s the problem?

[Speaker H] Because here the whole issue is only to get an impression whether what they say is fit for testimony or not.

[Rabbi Michael Abraham] So what? But that doesn’t matter—you can get the impression that now he is reliable, so now also exempt him from punishment on the basis of that impression. From that very same impression—what difference does it make? In the end, this is seemingly already a knockout question. In other words, we explicitly see that a religious court can indeed address the question of whether a person repented or not. Let’s see the continuation. I’m skipping a bit in the Shulchan Arukh, to halakhah 29: “Anyone who became liable for lashes, once he has been lashed by the court, returns to his validity. But the other disqualified witnesses, who are disqualified because of money they extorted or stole, even though they paid back, they require repentance, and they remain disqualified until it becomes known that they have turned back from their evil path.” This is in part repeating what it said above, but putting it into a broader context. If you are wicked in the category of what the Talmud calls extortion, meaning you steal or extort, something involving money, then you need repentance. Without repentance you do not return to validity. But if you are wicked because you ate pork—not related to greed for money or financial crime, but just plain halakhic criminality, let’s call it that—then there, if you were lashed, once you were lashed by the court you return to your validity. It doesn’t say that you need to repent. He was lashed; he returns to his validity. He paid his debt to society, as they say, right? So he returns to validity. Why this difference? So look: the Talmud—the basis of all this—is in tractate Sanhedrin, brought there as a dispute between Abaye and Rava on the question: why is a wicked person disqualified from testimony? Or, which kind of wicked person is disqualified from testimony? The Talmud says: “Do not place a wicked person as a witness.” The Torah says, “Do not place a wicked person as a witness.” Explicit in the Torah: disqualified from testimony, a wicked person is disqualified from testimony. The question is why—or who, and because of the why. Abaye says the one who is disqualified is only a wicked person of extortion, only a wicked person suspected of lying for money, yes. What?

[Speaker D] That’s what it says in the Torah, “Do not place a wicked person as a witness”—

[Rabbi Michael Abraham] —to be a violent witness. Yes. So Abaye says only a wicked person of extortion. Rava says every wicked person. What is a wicked person? Someone who transgressed an offense for which lashes are given—there are definitions—but every wicked person, not only one wicked in matters of extortion. And the Ketzot HaChoshen in section 46 explains what the difference is between those two positions.

[Speaker C] That you can tell whether they turned back from their evil way.

[Rabbi Michael Abraham] What do you mean?

[Speaker C] The extorter and the robber—it says there, it doesn’t just say “turned back,” it says “turned back from their evil way.”

[Rabbi Michael Abraham] And someone who ate pork turned back from his evil way too—he stopped eating pork. What’s the problem?

[Speaker C] That you can see it more clearly.

[Rabbi Michael Abraham] And with pork you can’t see it? He stopped eating pork, now he only eats kosher. What’s the problem?

[Speaker I] It has to do with the trust people give him, trust that the Holy One, blessed be He—like, that’s something between man and God and all that.

[Rabbi Michael Abraham] Okay, close, I think. The Ketzot explains the difference at a very similar point. The Ketzot explains it like this: Abaye holds that the disqualification of a wicked person is simply because of concern that he may lie. So if someone commits offenses in order to gain money, then I’m concerned that he’ll also lie for that purpose. Therefore I can’t believe what he says; he is simply suspected of lying. In contrast, someone who eats pork is wicked in another sense, but I have no reason to assume that he specifically lies. So why is he disqualified? “Intrinsic disqualification,” as they say in yeshivot—intrinsic disqualification—not because of concern for lying, but the very fact that he is wicked disqualifies him from testimony. In his case I have—he says—it is simply suspicion, he is suspected of lying. In contrast, someone who eats pork is wicked in another sense; I have no reason to assume he lies. So why is he disqualified? Intrinsic disqualification, as they say in yeshiva language, yes—intrinsic disqualification, not because of suspicion of lying but because the very fact that he is wicked disqualifies him from testimony. What is the root of that disqualification, the rationale of the verse? We generally don’t derive law from the rationale of the verse, but it seems to me this is the obvious explanation. They don’t want to grant him some public status. I mean, what is a witness? A witness comes to court and says, “So-and-so did such-and-such.” The court, on the basis of his words, applies the law; it determines a person’s fate based on the fact that you spoke. What is that? It’s some kind of status. Meaning, you determine the fate of human beings. The Torah is not prepared to give a wicked person that social status. Notice: at a heavy price. The price is that we will not produce a just verdict, because if the assumption is that he does not lie, then his testimony is testimony worth considering; he is telling us what the truth was. But it is more important to the Torah not to give him status than to achieve this local just verdict. Okay, it seems to me that is the explanation of the disqualification of a wicked person. Now, if that is indeed so, then the following difference emerges: according to Abaye, only a wicked person of extortion is disqualified from testimony because of suspicion of lying. According to Rava, you do not need suspicion of lying in order to disqualify a wicked person from testimony; the very fact that you are wicked—the social status issue I explained before—disqualifies you from testimony. True, even according to Rava, and the law follows Rava, true that even according to Rava when you are wicked in matters of extortion there is also the dimension of suspicion of lying. He is not arguing with Abaye on the facts; he just doesn’t need it. But beyond that there is also your very being wicked. Okay. Now let’s return to our topic. If we rule like Rava, okay? Someone ate pork, he is disqualified from testimony, now he was lashed. The Shulchan Arukh says: without repentance he returns to validity, he paid his debt to society. Why? Very simple—because I have no problem with his testimony; he speaks truth. The whole problem is that he is a criminal, and I don’t want to give a criminal status. Once he was lashed, he paid his debt to society, and we go back to relating to him normally. That’s the assumption. What? If he eats pork again, he will be disqualified again. No tricks, no concessions. But as long as he doesn’t—fine, he was lashed, he paid his debt to society, that’s it; we have no suspicion that he lies. But with a wicked person of extortion, the problem is that we suspect he lies. So what would it help? Let’s say there were lashes for robbery—there aren’t, because it’s a prohibition repaired by repayment—but suppose there were lashes and he was lashed. So what? If I suspect him of lying, I can’t believe him. It’s not a procedural problem, not a technical problem; I can’t believe him. Therefore it has to be that he repents. Only if he repented am I willing to restore his presumption of innocence, or his presumption of validity, and now I am willing to believe him. Lashes won’t help here. Even if there were lashes for robbery, here repentance is needed. Something like this—you know, I think there was once a petition regarding Deri, I think, to the court. Ezra, you may know; I just don’t remember the details. People wanted Deri not to serve in some office because of the disgrace attached to the—what? Or the opposite, maybe there was some claim that he could serve because he had already paid his debt to society, he sat in prison, and so on. And then some argument came up there—I don’t remember again what the ruling was and what the petition was—but some argument came up that disgrace is not a punishment; disgrace is simply lack of fitness for the role. Meaning, if we do not trust that a person will do the job properly, then what do I care that he sat in prison? So he sat in prison. From me you require that he repent, but fine. I’m saying—this can be debated—but at the conceptual level, what?

[Speaker B] The disgrace outweighs the sin.

[Rabbi Michael Abraham] Fine, that’s another discussion. But I’m saying that on the conceptual level, the public attitude today—I don’t know how it is in the courts, but the public attitude today—is to view the question whether there is disgrace as a kind of punishment. Meaning, we fight over it as though it were a punishment. On the conceptual level, disgrace is not a punishment. It’s simply: I do not trust you; I’m not willing to entrust you with a public office because I don’t trust you. I have no problem with you, everything is fine, I’m not doing anything to you—but what do you want, that we should entrust money to you when I know you’re a robber? So you paid your debt, you were punished, everything is fine. The same is true of a wicked person of extortion; it’s like an offense carrying disgrace. Okay? I said that even according to Rava, with a wicked person of extortion there is also suspicion of lying in addition to the— So let’s say he was lashed. Once he was lashed, the issue of intrinsic disqualification is erased, but there still remains the concern for lying as long as he has not repented. Therefore he must repent. Okay, that seems to me to be the plain meaning of the Shulchan Arukh. And now, if we return to our topic, this essentially means for our discussion that the court can indeed enter into the question of whether a person repented or not. And if we see that in the case of a robber a person can repent and the court restores him to validity, here I want to make a comment that nevertheless this can be reconciled, this difficulty, even though it really does look like a serious difficulty—precisely because it is so simple, so obvious, it’s unlikely that these important Jewish authorities missed it. It can be reconciled, and I think perhaps—but at the price of a certain understanding of what sort of repentance is being discussed here. If the repentance being discussed here means regret over what he did, then that indeed I cannot know. How do you know whether he really regretted it or didn’t really regret it? We’re back to what you said before. But if repentance means how he behaves from here on—how he behaves not only in the sense that he doesn’t steal. He appears to me to be a reliable person. Again, I don’t know whether he regretted what happened, whether he sat and did the inner work of regretting the past. But I do know that from here on he behaves like a normative person. Maybe that is enough to restore him to validity, and that the court can see. Meaning, if he behaves normally, he no longer returns to the actions he did then, he seems fine at present—maybe that is something the court can already see. What it cannot see is what is happening in his heart. Why doesn’t that help regarding punishment? Because regarding punishment, he is punished for the offense that he committed, and here you need to know whether he truly regretted it. How can you know whether he regretted it? Here what you need to know is whether right now he is telling the truth. What do you care about the offenses he committed? The question is whether right now he is telling the truth. So form an impression and see whether right now he is telling the truth. I’ll bring you just one example so you can see this matter: there’s another context in which this issue of repentance in an earthly court appears. And that is in the Talmud—not on your sheet—it’s a Talmud in Yevamot 22, with Tosafot there, the details don’t matter right now. The Talmud discusses when a son is liable for striking or cursing his father, or his mother, either parent. If his father was wicked, then he is exempt; he is not “one who acts as one of your people.” But if his father repented, then he is liable. Okay? So again we see that for an earthly court—after all, it needs to know whether to punish the child, the son—okay? So the court needs to know whether the father repented; the court decides. So you see that it is indeed accessible. And there too, in my opinion, the answer is the same answer, the resolution is the same resolution. Repentance here appears in two different senses. Meaning, the explanation is the same explanation. The Talmud there later, in a somewhat different context, though I think it is not disconnected, says that there is such a category called “one who acts as one of your people.” Only toward someone who acts as one of your people do the interpersonal obligations and restrictions apply. Someone who basically keeps the commandments, someone who behaves the way a Jew is supposed to behave—that is the assumption. Now, if the father repented not in the psychological sense that he regretted the offenses he committed, but at present he acts as one of your people—he behaves, he keeps the commandments, he does not commit offenses, like any other Jew—I have no idea whether he regretted what happened once. That’s not important. After all, I am not judging whether he is a penitent. What is this—the son is his judge? The son needs to honor him as long as he is a decent person, as long as he is a person who does what he is supposed to do. So for that matter, the metric of the present is enough. If the person now behaves as one of your people, then the son is obligated in his honor. But when a court comes either to punish or exempt from punishment, it needs to judge how the person relates to the offense that he committed, because the punishment is given for the offense of then. That the court cannot do. Therefore, both from there and from qualification for testimony, this approach does not necessarily become difficult—the approach that says we cannot know. One more place: in the law of an idolatrous city there is a very, very interesting Maimonides—just worth knowing. And what is the law of an idolatrous city? Laws of Idolatry—you have it in front of you—“At the time when it is fit to become an idolatrous city, the Great Court sends and investigates and inquires until they know with clear evidence that the entire city or the majority of it was led astray and returned to idol worship. Afterwards they send them two Torah scholars to warn them and bring them back. If they return and repent, good; and if they persist in their folly, the court commands all Israel to go up against them in war, and they lay siege to them and wage war against them until the city is breached.” And there is a very big novelty in this Maimonides. After they become liable, and they are already an idolatrous city, they send them two Torah scholars to try to bring them back to repentance. If they repent, the punishment is waived. Only if they do not repent do they carry out upon them the law of the idolatrous city. The Raavad there asks, in his glosses: “Abraham said: It is a good thing that repentance should help them, very nice to repent, but I have not found repentance helping after warning and action.” There was prior warning, they committed the offense, they were already liable for punishment—after all that, repentance helps? Where do we ever find such a thing? This is the Talmud in tractate Makkot that we saw, that when a person has become liable for punishment, repentance does not help him; he is not exempted from punishment. So what does Maimonides find here?

[Speaker F] Maybe the whole story here is a definition of warning; this itself is the warning. The court investigated, saw that they were worshiping idols, so they say okay, now we’ll send them the warning, and if after the warning they persist in their rebellion then they are killed.

[Rabbi Michael Abraham] Actually there is such a version brought in Migdal Oz. I don’t think that’s correct. I’ll tell you why. First, because it says, “when the whole city or the majority of it was led astray and returned to idol worship.” Returned. “Returned” means they were already warned and still returned, and now he sends two Torah scholars to bring them back to repentance, not to warn them. Also the wording—warning is a technical term that Maimonides and the Talmud use. There’s no need to use “bringing back” for warning. Warning is warning; it is another concept from bringing back to repentance. Warning seems—warning is always given before a sin, not after a sin. Maimonides is speaking of bringing back to repentance, not of warning; it doesn’t seem that way.

[Speaker I] He—

[Speaker F] He writes that it’s similar to what you said before. He writes, “they send them two Torah scholars”—no, he does not—

[Rabbi Michael Abraham] He doesn’t just say, “they send them two Torah scholars to bring them back”—

[Speaker F] —but “to warn them and bring them back.”

[Rabbi Michael Abraham] No, he doesn’t say “to give them prior warning.” There is a word for prior warning. “To warn” is not prior warning. “To warn,” by the way, is a biblical expression. “There is no punishment unless there is warning”—that does not refer to witnesses giving prior warning. “There is no punishment unless there is warning” means without a verse establishing the prohibition. The witnesses—that’s prior warning, not warning in that sense.

[Speaker D] How does the Radbaz work it out? “Warn them”—on Rosh Hashanah they were already given the verdict, and now on Yom Kippur—heavenly court.

[Rabbi Michael Abraham] Heavenly court—that’s not—it’s the claim in tractate Makkot, we saw it. The heavenly court does accept repentance; that’s exactly the point. So Migdal Oz says—first of all he brings Shmuel’s version. He says there is some version in which in fact they do not return—that this is the purpose, the initial warning, if I understand his intention in that version. But he says: “And I say that there was a scribal error in his text. I already checked in a copy corrected in the handwriting of our teacher Moses, of blessed memory, with his signature, and it does not say there ‘afterward they return,’ but rather this is the basic warning.” And even if it did—but he says, I don’t understand why this change of text is necessary; Maimonides is right in his reasoning. “And even if it were so, I am amazed why repentance should not help,” yes, after all, in every matter in the world. Repentance helps—what do you mean? So why indeed shouldn’t Maimonides be right? Why search for excuses? What does the Raavad want from him? And it is written, “Return, wayward children,” and as brought in Rosh Hashanah and Yoma and Sanhedrin 85 and so on—there are thousands of proofs that repentance helps. So why does Maimonides need excuses? It’s obvious that this is so. If they repent, they are exempt.

[Speaker H] It helps, but not regarding the punishment.

[Rabbi Michael Abraham] Okay, so he says: why not? Why? If you really return and are atoned for, then why impose punishment on you?

[Speaker H] But the earthly court has to deal with the Talmud, no?

[Rabbi Michael Abraham] Fine. So he says—that’s why he proposes the version, he just doesn’t understand conceptually what the logic is here. He doesn’t understand why—why indeed is it so?

[Speaker F] Because an earthly court does not forgive him. Why not? That’s what—

[Rabbi Michael Abraham] So that is exactly what he asks. He asks why. He is not asking what the law is. He is asking for the reason for the law—why is this so? A decree of the Torah? Yes, he asks why it is so. What do you mean, a decree of the Torah? The Talmud says it, the Torah doesn’t say it. The question is why it is correct. It’s a good question; it needs to be understood. Okay, so before I brought the first direction, which says that—let me return—now we’ll deal with the question. Okay? So the question is: why does repentance not help with court-imposed punishments? One direction I already mentioned: the prevalent direction among the later authorities, that this is simply not something revealed to the court. It cannot know whether the person repented or not. I said there are various comments on that, and one can answer them. I’m not entirely at ease with those answers.

[Speaker I] But regarding the public, you can know whether they repented, because you can see how the public behaves; it’s not something—

[Rabbi Michael Abraham] I’m talking about an individual. Why are you moving to the public? We said an offense of an individual person. You mean maybe in the case of the idolatrous city? Ah, it could be that in an idolatrous city it’s exceptional because we’re dealing with a public. In an idolatrous city there are other distinctions too—I can bring other distinctions why the idolatrous city is a special law. Because there, for example, they also judge people who did not sin. They judge the whole city even though only the majority sinned. There it could be that they really allow them some option to repent and cancel the matter because they didn’t truly sin. So perhaps there it really is a special law. I’m not getting into the problem of the idolatrous city now; Migdal Oz there just presents the question in its full force, and that’s why it was important to me. Noda B'Yehuda goes in the same direction I mentioned before, that a court cannot know what is in a person’s heart, but with an interesting twist. His responsum is fascinating. We dealt with it in the year when I talked about responsa; I don’t remember how many years ago that was. We read this responsum of Noda B'Yehuda. He deals with a case where there was a bridegroom who committed adultery with his mother-in-law. And he didn’t know, and he asked Noda B'Yehuda—he repented, he did repentance for what he had done—and he asked Noda B'Yehuda whether he is obligated to reveal this matter to his father-in-law. Because after all, she is forbidden to her husband; he may not continue living with her. She is forbidden both to the husband and to the adulterer, right? So once you repent, you understand that what you did was wrong. Fine, you fixed yourself. But now you are leaving him to live with her in sin. You have to tell her husband that he may not live with her. And if she repented—

[Speaker C] Then is it permitted?

[Rabbi Michael Abraham] No, then she would tell her husband. Then she would be asking the question and not the bridegroom. But— So the question is fascinating on the human level too, not only on the halakhic level, and it has different sides, and clearly the human consideration enters in here too, not only halakhic formalism. But for our purposes what matters is one passage within the responsum. Within Noda B'Yehuda’s responsum, yes? He discusses there the question: what exactly is repentance? There is the psychological process of repentance, and there is what he calls “repentance of equivalence.” “Repentance of equivalence” means the sufferings a person undergoes as part of the repentance process. Rolling in the snow, which I mentioned earlier, appears in the Rokeach and in the books of the early Ashkenazic authorities. Those things—there are various definitions there for each sin, what exactly one has to do, how many fasts one has to undertake, what kinds of rollings one has to do, what sufferings a person has to impose on himself intentionally, to undergo sufferings in order to achieve atonement. Noda B'Yehuda, who after all was fairly Lithuanian in spirit, asks himself what the essence of repentance is: the psychological process, or specifically these things—rolling in the snow and so on. That’s what he calls repentance of equivalence, a measure corresponding to the offense. So he says: “However, I say all this only if fasting were something that impedes repentance. But in truth fasting is only ancillary to repentance, and the essence of repentance is abandoning sin, verbal confession, a broken heart, regret, and wholehearted closeness and fervor in loving the Creator. And this is repentance—that he return to the Lord and He will have mercy on him; and ‘return to the Lord’ means that he cleave to Him. But the other things—fasting and mortifications—are not the essentials.” In the end he’s Lithuanian, that’s fine, but he still wrestles with this question.

[Speaker F] Maimonides wasn’t Lithuanian and it appears in Maimonides.

[Rabbi Michael Abraham] No, but he didn’t say that this is the essence of repentance. He also says one should do it; he is just asking what the essence of repentance is, what is the thing without which repentance is incomplete.

[Speaker F] Does Maimonides say one has to do mortifications? What? Why does he say—

[Rabbi Michael Abraham] I don’t remember whether mortifications appear explicitly in the Laws of Repentance. He brings confession. He doesn’t bring all the rules of rolling in the snow and fasts—he doesn’t say that.

[Speaker F] Does he say to afflict oneself?

[Rabbi Michael Abraham] But I don’t remember at the moment. It could be not; I don’t remember right now. Doesn’t matter. In any case, his conclusion too is that it certainly isn’t indispensable, it isn’t part of the law, so Maimonides also wouldn’t need to bring it. But I don’t know whether he—

[Speaker J] Was against it altogether, or whether he just didn’t think it should be brought as a tool for reaching the psychological state. Okay, what’s your goal—that he should suffer, like, what?

[Rabbi Michael Abraham] In a moment we’ll see, in a moment we’ll see. It’s not so simple. We saw the Talmud in Yoma, where you see that suffering is beyond repentance—but we’ll get to that in a moment.

[Speaker J] The Talmud—

[Rabbi Michael Abraham] Says that repentance suspends, and Yom Kippur and suffering atone. Meaning, I already did repentance, so why do I need suffering in order to repent? There is something in suffering that is beyond repentance. But in just a moment.

[Speaker C] Is that suffering a person imposes on himself?

[Rabbi Michael Abraham] Apparently that’s the explanation here.

[Speaker C] Not there in Yoma—

[Rabbi Michael Abraham] Not there in Yoma; there, simply read, it could mean suffering that the Holy One, blessed be He, puts him through. Fine, maybe a person wants to advance—

[Speaker J] —that process.

[Rabbi Michael Abraham] Fine, fine, that’s the claim. There’s such a custom, you know, of administering lashes before Yom Kippur, where people lash themselves as though in place of court-imposed lashes in order to gain atonement. It’s symbolic. But here we’re talking about really being lashed—that is, actually beating oneself in order to suffer. “And know”—now he brings a proof that the essence of repentance is the psychological process and not repentance of equivalence. “And know that it is absolutely certain, without doubt, that repentance effects complete atonement, and this matter is publicized in the Torah and Prophets and Writings and in both Talmuds and in all the midrashim, and the prophet says,” and so on. “And this too is beyond doubt: when the Sanhedrin functioned, if one transgressed one of the capital offenses of the court after prior warning, even if many years passed and he did not come to court, and in the meantime he repented and undertook many mortifications and countless fasts, more and more than the repentance of equivalence mentioned in the Rokeach, and then after all that repentance witnesses came to court and testified—certainly the court pays no attention to his repentance and burns or stones him according to the punishment of the sin.” In short, he has two assumptions of which he has no doubt. First assumption: repentance gives complete atonement. Second assumption: as far as the court is concerned, it helps not at all. Now he says these two assumptions don’t quite fit together. “And the matter is astonishing: since repentance certainly helped and his iniquity has departed and his sin has been atoned for, why should he die? ‘Do not kill the innocent and the righteous’ is written. So why, after he repented, do we kill him? And explicitly they said at the beginning of ‘These are those who receive lashes’: for those liable to death, if they repented, the court does not forgive him”—what we read earlier in the Talmud.

[Speaker F] What did you ask—that from heaven maybe not?

[Rabbi Michael Abraham] Yes, right, there’s a question. “Rather, certainly”—and now he answers, and in this he brings proof to his investigation from above, about what the essence of repentance is, yes, so we need to remember the larger framework—“rather, certainly it is a scriptural decree, for otherwise all the punishments of the Torah would be nullified entirely, and no person would ever be executed by the court, because he would say, ‘I have sinned and now I repent.’ And since the Holy One, blessed be He, wanted to impose the death penalty for some sins so that a person would fear to transgress, therefore it is necessary that repentance not help to save one from death by the court.” What is he saying? Basically what you said: every person can tell the court, “I repented.” After all, the court—he comes back to what other later authorities said—we cannot really know whether he repented, so every person can tell us that he repented to the court and then he won’t be punished, and then what will happen?

[Speaker F] No, more than that—even if he did repent. What do you mean?

[Rabbi Michael Abraham] Yes, he really did repent—

[Speaker F] You—

[Speaker J] You see, he became chief rabbi—

[Speaker F] —a walking Torah scroll here.

[Rabbi Michael Abraham] No, I’m saying: because if repentance were effective, then if a person—what would happen? A person would come to court and say, “I repented.”

[Speaker F] He repents, he repents. What do you mean, says? He comes to court and says, wait, wait, I’m repenting?

[Rabbi Michael Abraham] No, it’s not entirely clear. Maybe—I’m not sure. That is, about this we’ll have to—this can be discussed; I’m not sure about it. Truthfully I struggled with this point. “He will say, ‘I have sinned and now I repent.’” “And now I repent” means he said to the court, “I sinned and I’m repenting,” not that he actually repented. One second, maybe I’ll just comment on that sentence—but it’s very interesting, by the way, though it’s not central to his argument itself.

[Speaker F] It goes exactly to the purpose—what’s the purpose? The purpose is that this serve as a kind of deterrent to keep people from committing crimes, to keep people from murdering. Now if a person says he has a trick, no problem—what’s the problem? They’ll kill me? Here’s the trick: when I get to court, to the religious court, I’ll repent. I’ll repent, I won’t say—I’ll say repentance.

[Rabbi Michael Abraham] With rolling in the snow and everything. What? With rolling in the snow and everything.

[Speaker F] No, he says that’s not enough.

[Rabbi Michael Abraham] Wait, he’s now bringing proofs for that; we don’t know it yet. He’s bringing proofs now, not assuming it. That is the conclusion of the argument. Now he’s bringing—we are in the middle of the proof for it. We don’t yet know that. He stated it above, and now he starts bringing proof for it. Okay, let’s see. I’ll just finish his move. So he says as follows: in essence, the result is that we won’t be able to punish in practice, and then we won’t achieve the deterrent effect, since one role of punishment—this is his assumption—is deterrence, or at least part of the role of punishment is deterrence.

[Speaker F] And what does he write? “Therefore it is necessary that repentance not help to save one from death by the court.” Not just that—it’s that repentance itself truly should not help.

[Rabbi Michael Abraham] Or repentance won’t help as a claim. Or repentance itself won’t help—it could be; we’ll see in a moment. So the claim, basically, is that if we really accepted repentance and exempted a person from a religious court punishment, deterrence would disappear from the world. Okay? That’s his answer to the Migdal Oz’s difficulty. But notice, he’s not looking for an answer to that difficulty; for him this is only an argument or proof for what he said above. How does what he said above follow from here? What did he say above? That the essence of repentance is not rolling in snow, it’s not "repentance proportionate to the sin," but rather repentance of the heart. And then he says this: "And if you were to think that repentance proportionate to the sin is the essence of repentance, then certainly it would have been said to Moses at Sinai, for every sin and transgression, its measure and the measure of its repentance according to its gravity. And from now on, why should repentance not help save from execution by religious court? And nevertheless, all punishments of execution by religious court were not abolished, for let us see whether he afflicted himself according to the proper measure—especially since there are many afflictions that cannot be faked, such as sitting naked before bees, rolling in snow, and the like, as mentioned in the books on repentance. And one who did not do according to the proper measure should be put to death by religious court. And fasting, too, cannot be faked, because if the witnesses come immediately to religious court, he will be executed, since he has not yet fasted." Meaning, this is something you can’t hide from religious court.

[Speaker G] Then there really would be deterrence.

[Rabbi Michael Abraham] Exactly. But now notice, he is in fact talking—and I’m going back to what you said before, Shmuel—meaning, there is an element here that inner, spiritual repentance can be hidden from religious court. You said that hiding it from religious court is irrelevant, but he says no: after all, inner repentance can be hidden from religious court, but this you won’t succeed in hiding from religious court, because these are actions. We can see whether you repented or not. So I’m not sure he means that…

[Speaker F] If it were visible, it would be something very easy.

[Rabbi Michael Abraham] In order to repent you have to undergo a thousand mortifications and bodily afflictions. Right, I understand your argument.

[Speaker F] The

[Rabbi Michael Abraham] I understand the argument; I’m only asking whether that’s what he means. Because you see here later on that he really does play on this dimension that you can’t know whether he repented. And the proof is that the mortifications we can know about, unlike inner repentance, right? So he really does… okay, but let’s leave that; it’s really a side issue relative to his argument. So what does he say? If repentance really were—this is a proof by negation—if the essence of repentance really were repentance proportionate to the sin, then there would be no answer to the Migdal Oz’s difficulty. Why? Because in truth we would have to exempt the person who repented. If he rolled in snow, that’s deterrent enough even without my then flogging him or killing him. Notice: repentance proportionate to the sin—"proportionate" means according to the weight of the punishment and the sin. Meaning he has to roll pretty seriously in the snow, or sit with bees, in order to be exempt from a death penalty. There’s deterrence here. If we waived his punishment, not everyone would do this. In other words, there is no deterrence problem if that were the model. And since that’s so, the Migdal Oz’s question would remain in place. But since we need to resolve that question—because the Talmudic text in Makkot says that religious court does not waive punishment on the basis of repentance—we are forced to conclude that repentance is only the inner process and not the rolling in snow, or at least that the rolling in snow is not indispensable for repentance. Okay? Then religious court essentially does not yield to it, because otherwise we lose the deterrent effect. Notice that he’s actually answering one of the questions I asked about the later authorities (Acharonim). The later authorities said before: why doesn’t religious court respond to repentance, why doesn’t it take repentance into account? Because religious court cannot know whether you repented or not. I said, fine, let there be doubt; in cases of doubt we also don’t punish. So to that he answers. What does he say? Earlier we gave the analytic answer, right? Because this is the kind of doubt of "I don’t know whether I repaid you," not "I don’t know whether I borrowed from you." A doubt that comes to exempt. In doubt we do not exempt—that’s the analytic answer, and I said it’s a bit difficult. He gives a better answer. He says: so what if it’s a doubt? We lose deterrence. Deterrence is something I need to preserve. If for every doubt I cancel your punishment, there will always be doubt. Where will the deterrence be? This needs a bit of thought in light of Maimonides, and that is also the accepted view in law today, that it is better for a hundred criminals to go free than for one innocent person to go to prison. That’s the accepted assumption today. He says explicitly: not so. He says not so. He says even if there’s doubt that you are innocent—and some people will go to prison, or we will punish them, even kill them, not just prison, right? They may be innocent—not innocent in the sense that they didn’t do it, but they repented, okay—but for the sake of deterrence we still have to do it; there’s no choice. Okay? That’s a different conception. By the way, Maimonides writes otherwise, so one has to discuss whether this fits Maimonides or not. Maimonides explicitly writes that legal principle, that indeed this is preferable. In any event, that is the Noda B'Yehuda. Now there’s also Maharal, who asks this question too.

[Speaker C] But the whole story assumes that deterrence is important. Right.

[Rabbi Michael Abraham] He assumes that punishment is about deterrence, or at least partly about deterrence, and that is enough to justify punishment. Actually, before Maharal, I already see that I’m not…

[Speaker C] If there’s another answer for the Migdal Oz, fine, okay, Migdal Oz, yes.

[Rabbi Michael Abraham] So then there’s no need to get to this, fair enough. In any case, maybe I’ll jump for a moment to the end there, to Beit She’arim.

[Speaker F] He repented so that a person should fear transgressing. Yes, that’s the deterrence.

[Rabbi Michael Abraham] Beit She’arim is the last source there in front of you, I think, right? I won’t really have time to get to it fully, I’ll just say it in one sentence because this Beit She’arim is really fascinating. He is the only one I found—earlier I said everyone except one—the only one I found who says: correct, repentance also exempts from punishment by an earthly religious court. That is true. Repentance exempts from the earthly religious court. What is written in the Talmudic text, and the assumption in all the places, that repentance does not exempt—that is only inner repentance. But if you also did—and he continues the line of the Noda B'Yehuda—if you also did the repentance, the repentance proportionate to the sin, the sufferings and all that, then you are atoned for even in the earthly religious court. That is his claim.

[Speaker D] That’s how they judged in the Sanhedrin? What?

[Rabbi Michael Abraham] That’s what he claims. What actually was—I don’t know—but that’s what he claims. He claims that that’s what happened. He explains the Talmudic text in Makkot somewhat differently too, not important now, but it’s a fascinating claim. More than that, notice: this is the plain meaning of the Talmudic text in Yoma. Look what a gain there is here. It’s the plain meaning of the Talmudic text in Yoma. The Talmudic text in Yoma, after all, speaks of four categories of atonement. Right? What does it say? That repentance and Yom Kippur and those liable to death penalties, say? Repentance and Yom Kippur suspend, and sufferings cleanse. Where is execution by religious court? Why doesn’t it appear there? Because there is no execution by religious court if you underwent sufferings. Self-imposed sufferings, according to his reading of course. If you underwent the self-imposed sufferings in a measure really equivalent to the death penalty—that is, serious sufferings—then you are truly atoned for even in the earthly religious court. We asked why execution by religious court is not mentioned in the Talmudic text. It is mentioned. That’s what it says. Who said this means self-imposed sufferings? Wait—that’s what it says under sufferings. What’s written there as sufferings is what’s written.

[Speaker F] Who is this? Is there a source in the Talmudic text for repentance proportionate to the sin?

[Rabbi Michael Abraham] Right. The sufferings written there in Yoma are self-imposed sufferings, or also self-imposed sufferings, not necessarily only self-imposed.

[Speaker H] It could be that he suffered because…

[Rabbi Michael Abraham] I have no problem with that, but also self-imposed. Meaning, if he undergoes self-imposed sufferings, then by that he is exempted from a death penalty or a flogging penalty. And that is what the Talmudic text says. In my opinion this is the smoothest plain reading, even though he is one lone voice; I didn’t find anyone else who says this. It’s a smooth plain reading and it has many advantages. Let me give just one more advantage so you can see. There was the ordination controversy—the renewal of ordination—in the 16th century. Maharib in Safed, his students wanted to ordain him; they ordained him—not only wanted to ordain him—and afterward he ordained five of his students, one of whom was Rabbi Yosef Karo, the author, okay? And there was a big controversy; Maharalbach, at the head of the sages of Jerusalem, came out against it, wrote a long pamphlet, Kuntres HaSemikha, and from there we know everything about the positions of both sides. That’s the last responsum in Maharalbach’s responsa. And why did they want to renew ordination? Do you know why? Not in order to renew the Sanhedrin and bring the messiah, but so that we could exempt people from karet, or at least atone for people through flogging. The forced converts, yes, exactly—to atone for people liable to karet punishments. "All those liable to karet who were flogged were exempted from their karet." If we flog them in religious court, we cancel their karet. So that’s why they wanted to renew ordination, so that there would be a religious court that could administer flogging. Maharalbach asks them: tell me, do you really think that until now all these people had no path of repentance? Meaning, thousands—I don’t know—millions of Jews, over 1500 years, who committed sins punishable by karet and did full repentance—were they not atoned for? Why weren’t they atoned for? Because they didn’t receive lashes—so karet remains? They have no way to repent? Obviously that’s not true. Obviously one can achieve atonement. More than that, we saw in the Talmudic text in Makkot that repentance exempts from karet, and therefore one can flog, because it’s not two punishments. Because karet can be removed through flogging. In other words, what do you want? There is another way to achieve atonement. That’s how he asks the sages of Safed. And I ask him: if there is another way to achieve atonement, then why was flogging needed? On the contrary, our situation now is better, since we don’t have ordained judges. We can achieve atonement and we don’t need to be flogged. Everything is fine; we’re all set. What do we do in such a situation? According to Beit She’arim, everything is clearer. Right, we’re all set if we do repentance proportionate to the sin. When there is flogging, the flogging does the job. Today, no. Someone who did not do repentance proportionate to the sin is really in trouble, unless the Holy One, blessed be He, put him through some kind of boot camp, yes? But if not, then really, yes, he is not atoned for. Otherwise it would really be hard to understand both sides of that dispute there—what is going on? How can that be? Maharalbach is right: how is it possible? What, without your renewed ordination—and afterward too, since in the end it was not accepted—so what? Then there is no atonement? What, the Jewish people have no possibility of atonement? On the one hand. On the other hand, if they do, then what exactly were the flogging and the ordained judges for? To help them? To connect them? To help them? To help them instead of sufferings? Okay, fine. So that’s the answer.

[Speaker B] But the claim is: we don’t need this, we don’t need this, we can do it even without their flogging and without…

[Rabbi Michael Abraham] Right, and that’s Beit She’arim: he says that without the sufferings and without the flogging—yes. No, then what did you gain?

[Speaker B] An important aid.

[Rabbi Michael Abraham] So if it’s an important aid, then I’ll beat you without being ordained. What, does it hurt less if I’m not ordained? So I’ll beat you and you’ll repent—same thing. What’s the difference? Obviously there is some formal issue here. No problem, we’ll set up a religious court, we’ll authorize it—that’s not a problem.

[Speaker C] For every transgression there is a specific repentance, there is the mortification that atones.

[Rabbi Michael Abraham] Yes, in the books on repentance there are rules: eighty-four fasts, this many fasts for that, and there are rules about how many things have to sting you, I don’t know, all kinds of things from the German Pietists. That’s the German Pietists. Okay, one moment—Maharal, I still want at least to get to him. I think this is the simple plain meaning of the Talmudic text. Whether I support it, I don’t know, okay; that’s what is written. Yes, fair enough. Why not? Meaning, a person who committed a sin has to face the consequences. Not terrible. I think that—what do you mean, not terrible? I don’t know. It is terrible, but okay. Maharal asks it this way; notice.

[Speaker I] It’s similar to what we said, with someone who commits sins between man and his fellow man, like violence and theft and that kind of thing. Once you see that he benefited from the whole thing, then you see that he committed violence as an indication.

[Rabbi Michael Abraham] As an indication of repentance. Fine. Okay. Maharal, look—he apparently asks the same question, but as always, you have to pay close attention to how the question is asked, even before getting to the answers. Very often that’s the key to understanding everything, and people miss a lot because they don’t work enough on the questions.

[Speaker C] In votes, it’s terribly important how the question is phrased, yes.

[Rabbi Michael Abraham] "The quality of repentance is that when a person regrets the sins he committed and returns to the blessed God with all his heart. And a person should not wonder what reason there is that repentance should help after he has already sinned, for in an earthly religious court, after one has committed a sin for which he is liable to death, even if we know that he has already repented, he is not exempt from death." How does he ask the question? It’s the same question as the Migdal Oz or the Noda B'Yehuda, but there is an opposite direction here, if you notice. I don’t have time, so I’ll just say the answer myself. It’s the opposite direction.

[Speaker B] They

[Rabbi Michael Abraham] They asked why it doesn’t help in the earthly religious court.

[Speaker B] He

[Rabbi Michael Abraham] He asks why it does help in the heavenly religious court. In other words, both sides are troubled by why there is a difference between earthly religious court and heavenly religious court, but the point of departure is opposite. That is, the later authorities we saw until now—their simple assumption is that repentance should help, so why doesn’t it help in the earthly religious court? His simple assumption is that in court it should not help, because you committed a sin, so why does it help in the heavenly religious court? It’s asking the opposite. Now why is that important? Because basically it hints to us how these two sides understand what a sin is and what repentance is. I’ll say it briefly because time is already up. The previous later authorities understand sin as something that corrupts the person, and when I now impose punishment on him, I am simply imposing a sanction on a bad person. If he repented, then he is not a bad person; he is a good person, like that Hamas wicked man. I am a good person. Why punish a good person? So what if once I was a bad person—what does that matter? Maharal understands it in a more metaphysical way, in line with his general approach of course. He understands it more metaphysically: there is some stain or defect upon you created by the transgression. Okay? Repentance does not erase the fact that a transgression was committed. Therefore, in effect, they asked wisdom—yes—"what is the sinner’s punishment? Evil pursues sins." Exactly. "Evil pursues sins." He brings that later. Okay? According to the law, you committed a transgression, you deserve to be hit with the consequences, and therefore he asks: so why does the heavenly religious court waive it? Okay? Because he understands the role of sin as some kind of cleansing of sins, not a sanction on a bad person—some metaphysical polishing off of sins, as it were. Meaning, the sin was committed; what does it help that you repented? That’s his assumption. Now look at two formulations of an answer, of a resolution. It doesn’t look from his words as though these are two answers, but I think they are two. "And this is because the heavenly religious court and the earthly religious court are not equal. For in the heavenly religious court, just as evil is under its hand and they judge evil, so too they judge good. And therefore, if the person has already repented and corrected his deeds, he is judged favorably in the heavenly religious court, for just as judgment over evil is under their hand, so too they judge him by his good deeds. But the earthly religious court pays no attention to this, and judges the person only for the evil. And we have explained this." What does that mean? A very strange answer.

[Speaker F] Religious court gives only punishments; it doesn’t…

[Rabbi Michael Abraham] A court does not give reward, after all. An earthly religious court doesn’t give reward for positive commandments; it only gives punishment for prohibitions. The heavenly religious court does both.

[Speaker F] Therefore, someone who repented did a good deed, and the earthly religious court doesn’t deal with that. It cancels out.

[Rabbi Michael Abraham] But that’s very strange—what do you mean? Fine, but does it erase the sin? I don’t want you to judge him—give him reward for repentance, erase the sin. What is this? You judge the sin, not the repentance. Apparently, consistent with his approach in the question, he holds that the sin remains where it is, nothing will help—even if you repented it helps nothing. In the heavenly religious court they do an offset: for repentance you receive reward like for any positive commandment, for the sin you receive punishment, the net is zero, and that’s how you are exempted. But there is no erasure of the sin. And therefore the earthly religious court cannot do that, because the earthly religious court has no mandate to deal with our positive side, only with our negative side.

[Speaker C] Why do you say there’s an offset rather than a cleansing of the sin?

[Rabbi Michael Abraham] Because if it were a cleansing of the sin, then why wouldn’t the earthly religious court do that too? The earthly religious court judges the sin. I repented, I have no sin. So that’s one point; it continues his assumption in the question that there is no such thing as: if you did an act, the act remains where it is; repentance does not help. I once commented—just a second—I once commented that the Talmudic text says that repentance from love turns intentional sins into merits. Repentance from fear turns them into unintentional sins. They never disappear. So what you did does not disappear from the world; either it turns into merits or it turns into unintentional sins, but it does not disappear. No—you can’t rewrite history; that only happens under Stalin.

[Speaker C] But once it turns into merits, doesn’t that cleanse the person?

[Rabbi Michael Abraham] In terms of the consequences. But there are still residues of the sin here; only now the residue is positive. I leveraged it in a positive direction, okay. But the sin did not disappear from the world; what I did left its mark on the world. Second answer: "Indeed, according to what we have said, repentance belongs specifically to the side of the blessed God, for He alone receives those who return. Therefore only the heavenly religious court cleanses those who return, and not the earthly religious court. For repentance belongs to the blessed God, because from the side of the blessed God alone there is repentance available to man, and nothing else at all. And therefore repentance is found in the heavenly religious court and not in the earthly religious court. On the contrary, wisdom says: evil pursues sins." Repentance is beyond the letter of the law; the Holy One, blessed be He, forgives beyond the letter of the law, while court works according to the strict law. That is his claim. So we—and again, it’s the same direction. Meaning, this is beyond the letter of the law; according to the strict law repentance should not help. This fits all along with his view in the question that repentance, in principle, should not help. But notice, if that’s so—that’s his second answer—let’s take one more step now. And with this I’ll finish. I brought this law that a religious court may impose punishments not required by the strict law. It’s a section in the Shulchan Arukh to this very day. In principle the court has to be the leading court of the generation, not every court—it’s not so simple—but even today a religious court can; the court of the Rosh cut off the nose of an adulterous woman. Because he regarded himself as the leading court of the generation. It can impose bodily punishments even though there is no such punishment in the Torah, certainly not by people who are not ordained. Okay? A religious court imposes punishments beyond the law when there is no choice, when one must close breaches and set things right; then they impose punishments beyond what the Torah requires. Can a religious court also waive punishments that the Torah imposes? Meaning, deviate from the law in the opposite direction. Why not? I don’t understand why not. And Maharal says repentance is beyond the letter of the law, therefore only the heavenly religious court. What do you mean? An earthly religious court can also say: "Look, he repented; I waive the punishment." More than that: after all, a religious court does this only when the time demands it, for proper purposes. There is a proper purpose—I want to accelerate, encourage, incentivize people to repent. I tell them: friends, if you repent, I exempt you from punishment. Not only with the stick, but also with the carrot. And that is within the mandate of a religious court. More than that: a religious court uproots a Torah law through passive omission, but not through positive action. When they punish beyond the law, that is a violation of the Torah through positive action—they kill, after all, even though he does not deserve the death penalty, and they kill him or injure him; that is a violation by positive action. If they are allowed to do that, then why shouldn’t they be allowed to violate by passive omission what the Torah says? For by the strict law, a religious court uproots a Torah law through passive omission. We do not blow the shofar on Rosh Hashanah when it falls on the Sabbath, even though according to the Babylonian Talmud there is a Torah commandment to blow. So what? Then why can’t a religious court waive? Therefore I say: it’s a completely different direction. There is no difference there between earthly religious court and heavenly religious court. It’s exactly the same thing. Repentance does not help by strict law; it does help beyond the letter of the law. The heavenly religious court operates beyond the letter of the law, and therefore it forgives. The earthly religious court can also operate beyond the letter of the law, depending on what the time requires. It can decide to waive; let it waive. What does the Talmudic text say? That the punishment is due to you; the Talmudic text establishes the law. If you repented, the punishment is still due to you. That is the Shulchan Arukh. And that is true even in the heavenly religious court—the punishment is still due to you; that too is written in the Shulchan Arukh. And does the court have the possibility of deviating? Of course. But the court can…

[Speaker F] Now say: right, the punishment is due according to the law.

[Rabbi Michael Abraham] But I see that the time requires it, I want to incentivize people to repent, so I waive the punishment. No problem—let it be waived. How is that worse than uprooting the blowing of the shofar on Rosh Hashanah? So they uproot the commandment to flog those liable to flogging in cases where they repent. What’s the problem? They can’t do that? There is no doubt at all that they can do that.

[Speaker E] The Rabbi also wrote about someone the public needs, and waiving the punishment of someone the public needs…

[Rabbi Michael Abraham] In the article "The Presumption of Repentance," there with the exile. Yes. So here, I think, there is complete symmetry, and notice: this erases the whole issue. Right. There is no difference at all between earthly religious court and heavenly religious court. Repentance helps in the same way above and below. It helps beyond the letter of the law. Meaning, according to the strict law, evil pursues sins. If you committed a sin, you deserve punishment. Beyond the letter of the law, the Holy One, blessed be He, says it is fitting to waive it. The Holy One, blessed be He, always does what is fitting, so He always waives it. But the earthly religious court has to examine the matter. If this would truly undermine deterrence, as the Noda B'Yehuda says, then they will not waive it, because there is no choice; they have to maneuver according to what repairs society. And after all, by the law the punishment is due. By the law, repentance really does not help. Therefore the Talmudic text says that repentance does not help. Repentance does not help because, in truth, after you repent, the punishment is still due to you. It is not erased. That is the law. That does not mean the religious court is forbidden to waive it. That does not mean the religious court cannot say: I want to incentivize people to repent, so I will not punish where that will really help. And without overstepping—and where the repentance is complete, because one must also preserve the element of deterrence. That is the legal balance the religious court has to weigh in its place and time, and it can absolutely do that. And if so, then the whole question never even begins. Earthly religious court and heavenly religious court are exactly the same thing. Repentance helps beyond the letter of the law, but it does not help according to the strict law, as it says: evil pursues sins. It does not help, only beyond the letter of the law. And beyond the letter of the law, the religious court can certainly waive. That fellow—what’s his name, that Jew—Beit She’arim? He is right on this point, even more than he says. A religious court can waive even without repentance proportionate to the sin. If it sees that the person’s repentance is genuine, real repentance, it can waive the punishment. More than that: if it waives the punishment, then will he still be left with excision? After all, it isn’t flogging him. So how will he be exempt from excision? Not at all. We saw in the Talmudic text that repentance already removes excision in any case. Repentance removes excision even without the flogging. Okay? Flogging is perhaps another means of removing excision. So from that standpoint there is no problem at all. In other words, the person who repented is indeed exempt; he is taken care of. So the religious court will waive the flogging for him; from excision he is exempt because he repented, and everything is fine. And that is what Maharalbach said to Maharib: there is no need for flogging, don’t renew ordination for me. We can do this without it as well. If the person repents, then he is atoned for. It cannot be that for two thousand years the Jewish people have had no atonement. So with God’s help, this Yom Kippur too, may we have a good final sealing.