On Repentance 5

[Rabbi Michael Abraham] Today is to wrap up our series on repentance with another implication that Yossi is supposed to be somewhat familiar with—at least the first part—from the article I wrote for the book his son-in-law published. But only the first part; since then there have been some more new ideas. I’ll still organize this somewhere at some point, because it’s getting long. Okay, basically what I want to talk about is the question: does repentance help in an earthly religious court? I also talked about this a bit on the website. The accepted view is that it does not. Repentance does not help in an earthly religious court. If a person became liable for lashes, or death, or whatever punishment it may be, even if he repented he is still punished. In other words, he is not exempt just because he repented. The main source people bring on this is a Mishnah at the beginning of the third chapter of Makkot. The Mishnah says: “And these are the ones who receive lashes: one who has relations with his sister, or his father’s sister,” and so on. In short, there’s a list there of all those who receive lashes. Then the Talmud says: it teaches those liable to karet; it does not teach those liable to court-imposed death penalties. Meaning: why does it bring those liable to karet, who receive lashes, but not those liable to death? Those liable to death should also, supposedly, receive lashes. There’s a bit of a question exactly how that works—if they die, then why lashes? In cases of karet, the rule is that if they are lashed, then they are exempt from karet, so there I can understand why those liable to karet receive lashes. But what does it mean that those liable to death should receive lashes? That they get lashes and are exempt from death? A little strange. The medieval authorities (Rishonim) discuss this—less important for our purposes—but then the Talmud says: Whose view is our Mishnah? Rabbi Akiva’s. As it was taught in a baraita: both those liable to karet and those liable to court-imposed death penalties are included in the category of forty lashes—these are the words of Rabbi Yishmael. Meaning Rabbi Yishmael says that in fact both those liable to karet and those liable to death receive lashes. Rabbi Akiva says: those liable to karet are included in the category of forty lashes, because if they repent the heavenly court forgives them; those liable to court-imposed death penalties are not included in the category of forty lashes, because if they repent the earthly court does not forgive them. So the Talmud says that the difference between lashes and death, or between karet and death, is that in those liable to karet, even if we give them lashes it is not considered “two wickednesses.” The rule is that we do not obligate a person for one act with two wickednesses, with two punishments. So in karet, where we obligate him in both karet and lashes, that is not two wickednesses. Why? Because if the person repents, then he will be exempt from the karet, and then what remains is only the lashes. Meaning karet is some kind of punishment given only to someone who does not repent; then he deserves karet. But if he repents, then he is exempt from karet, and then in effect he is liable only for lashes, and that’s not two wickednesses. By contrast, someone liable to death—karet is a punishment at the hands of Heaven—someone liable to death, repentance will not help him with the court-imposed death penalty. Even if he repents, he is not exempt from death. Since that is so, the combination of lashes and death is considered two wickednesses. That is what the Talmud says. Again, there is a lot to discuss about this Talmudic passage, but for our purposes what matters is just the distinction itself. So Rashi there writes, Rabbi Akiva says regarding those liable to karet—and Rashi says like this: if they were warned for lashes, they are included in lashes and receive lashes, and there is no issue here of being liable for two wickednesses, where his punishment is lashes together with karet. And why are these not two wickednesses? Because he can exempt himself from the punishment of karet through repentance before the heavenly court. But those liable to death are not included in lashes, because here there are two punishments—lashes and death—and one who is lashed will ultimately still be executed, because even if he repents, the earthly court does not waive the death penalty for him. Meaning, from this Rashi it looks like he understood that the discussion is: why not lash him and let him be exempt from death? So he says: even if you lash him, even if he repents, he will still be liable to death. And if even after repenting he is still liable to death, then you’ll still kill him afterward—so what came out of it? That he was punished with two punishments for the same transgression. In karet, if you lash him and he repents, then he won’t receive the karet, because the heavenly court forgives him for it, and then it comes out that he got lashes and got one punishment, and that’s it—at least if he repented. If he didn’t repent, then he will get karet as well. And that too is a question, because on the face of it the Talmud says that those liable to karet who were lashed were exempted from their karet, so it sounds like the lashes themselves exempt from karet.

[Speaker B] Even without repentance.

[Rabbi Michael Abraham] Yes, apparently. But here you see that it’s at least a dispute among the tannaim. In any case, the distinction itself is certainly written here. I think I already mentioned once—this is really the whole controversy that erupted in Safed around renewing ordination. The Maharalbach has, in the last siman in his responsa, something called Kuntres HaSemikhah, and from there basically we learn everything we know about what happened there, including the views of those who wanted to renew it. He headed those who opposed renewing ordination. But he brings both views. It turns out there that the basic motivation of those who wanted to renew ordination was to flog coerced converts. People who had been coerced had in effect committed transgressions, and they wanted to flog them in order to exempt them from the karet they would incur for idolatry and things like that. So that was basically why they wanted to renew ordination, because an ordinary religious court—if it just gives them lashes, that’s not considered lashes of a religious court. You need an ordained court that has authority to administer lashes, and only an authorized court that administers lashes exempts the sinner from his karet.

[Speaker C] But coerced ones—“the Merciful One exempts one who was coerced”—that exempts him completely.

[Rabbi Michael Abraham] No, the coerced ones from Spain—the claim is that in idolatry there’s no such thing. You have to surrender your life; there is no coercion.

[Speaker B] But there need to be witnesses and warning. How can they flog themselves?

[Rabbi Michael Abraham] All of that is discussed there. The question is—fine—within the… okay, the question is if they incriminate themselves, then on the face of it a person cannot render himself wicked. So witnesses will come and testify that he worshipped idols. Who exactly are the witnesses? People who themselves didn’t worship idols? Who exactly? There’s a lot of discussion there around the issue, but that was the basic motivation. Meaning: to flog them in order to exempt them from karet, to bring them atonement, essentially. For those liable to death, flogging won’t help, because even if you repent you won’t be exempt from death, and then it turns out that you are liable to two punishments, or two penalties, for the same act, and the rule is that you punish him with one punishment and not two. Nachmanides in Milchamot there writes the same thing too, but that’s not important. In any case, that is what emerges from the plain meaning of the Talmud, and this is considered the fundamental source for this view that everyone shares: that repentance does not help exempt from punishment of religious court. Repentance helps exempt in the heavenly court, but not in the earthly court. Now there are several later authorities (Acharonim) who discuss the question of why this is really so. I’ll maybe bring three. There’s the Chida’s approach in the book Ein Zokher, and there he writes—yes—he asks a question, he’s astonished: how can this be? After all, we know that repentance basically erases sins, and Maimonides writes, “I am not the same person I was,” and “look how yesterday he was distant and today he is close and clean and pure.” He’s trying to encourage us and tells us that basically after repentance we are clean as we were. Fine. So if we are clean as we were, then why in the punishments of religious court does repentance not help exempt us?

[Speaker B] When did he have time to do that? What do you mean? The repentance. What? He’s going to think he’s repenting? I understood that for repentance you need to stand in the same situation—

[Rabbi Michael Abraham] —where you committed the sin, and withstand it. No, that’s not a rule. It’s an indication Maimonides brings, but it’s not a rule. Meaning, it doesn’t have to be that way; without that it’s still possible that you… But even let’s say it is so—fine—suppose there was someone who happened upon exactly the same situation and was a penitent, and it was perfectly clear he wouldn’t fail, just for the sake of the hypothetical discussion. Now, okay, they bring him to religious court after the repentance, after everything. A year passes, two years, three years, doesn’t matter how long. They catch him, there are witnesses, they bring him to court. He repented, there are witnesses that he repented, he was even in that same situation, everything happened. He is still not exempt from punishment by religious court. The question is: why? After all, if repentance really helps, then he should have been exempt from court punishment. How can you kill someone who is innocent and righteous—“do not kill the innocent and righteous.”

[Speaker D] You can’t enter his mind? Huh? You can’t get to the bottom of what he’s thinking?

[Rabbi Michael Abraham] Ah, so the Chida really writes in Ein Zokher that there is a technical problem here.

[Speaker D] Only the Holy One, blessed be He, can.

[Rabbi Michael Abraham] Exactly. The Chida’s basic assumption is that repentance really should have helped even in the earthly religious court. That’s the basic assumption. Except—there’s a technical problem. How can you know if he repented genuinely or not? These are matters of a person’s inner soul.

[Speaker B] So there’s doubt there—so you kill him despite a doubt?

[Rabbi Michael Abraham] Ah, the big problem is that this explanation is very puzzling. It’s puzzling for several reasons—at least two. One of them is what Shmuel said. Meaning, fine, you can’t be sure, but you have a doubt whether he repented or not. If you have a doubt, do you kill a person when you’re in doubt? After all, when do they kill a person, when there are such remote concerns? The Talmud in Makkot—I also already mentioned it—about Rabbi Akiva and Rabbi Tarfon, who say: had we been in the Sanhedrin, no person would ever have been executed. How? They would save every person, even a murderer. And the Talmud explains there that in the case of a murderer, they would ask the witnesses whether perhaps they saw that there was a perforation where the sword entered—in which case he was already bound to die, meaning he was a treifah. One who kills a treifah is not liable to death by human hands, only by Heaven. So fine, that concern is enough to save a person from the death penalty. So a person who did complete repentance—the point is, you’re not sure about the person. Who knows, maybe he’s a hypocrite, maybe inwardly there’s nothing there. So you can’t know.

[Speaker B] They didn’t accept that argument.

[Speaker E] What?

[Rabbi Michael Abraham] Because the concern is very remote—they didn’t accept that argument. I brought it only to demonstrate how far things can go. But obviously, where you have a fifty-percent doubt, or even a ten-percent doubt, you do not kill a person. There’s no doubt about that at all.

[Speaker B] There’s a difference. The doubt because of which you don’t kill a person is basically about the act for which he is being judged. Here this is his defense claim. It’s a claim that comes and says: I now want not to receive the punishment. So that really is…

[Rabbi Michael Abraham] Prove it. Yes, but in fact I saw someone who wanted to make exactly that argument—that the doubt that exempts, when we exempt from punishment because of doubt, is when it’s not clear that he is liable to the punishment at all. But here it’s clear that he is liable. The only question is whether he became exempt; this is a claim of exemption. And when you have doubt in a claim of exemption, the burden of proof is on him. And still I say that if a religious court has doubt whether in the end the person became exempt from the punishment or not, obviously it would not kill him. Meaning, that can’t be. Just because I’m in doubt and the burden of proof is on him… what?

[Speaker F] There are two planes here. Because in that dispute of Rabbi Tarfon and Rabbi Akiva and Rabbi Yochanan, it’s basically about managing public affairs. If we look at the religious court as absolute truth, okay? I’m talking about the Sanhedrin as describing absolute truth. And there we have doubt whether he repented or not, so let’s say I do accept his repentance on the level of repentance between him and the Holy One, blessed be He. But for managing affairs I’ll arrange another punishment for him. It’s like when they put them into the dome-cage and all the other punishments where there’s doubt regarding the halakhic truth. But in reality—meaning—it could be that they really accept the repentance, but we’ll kill him anyway, not because we didn’t accept his repentance; his repentance really is accepted.

[Rabbi Michael Abraham] But to kill a person who is innocent?

[Speaker F] No, so I’m talking—he would get lashes, yes, I don’t want to… let’s say in lashes. Fine. Because when you give him lashes, then the punishment you give him is not a punishment on the level of the Sanhedrin’s truth. They wouldn’t put to death… Rabbi Yochanan didn’t answer them in terms of Sanhedrin—maybe he thinks… Rabban Gamliel, sorry—when he answered them, he answered them: “You would increase murderers in Israel.”

[Rabbi Michael Abraham] Correct, okay, what do I care? Fine, so you increase—

[Speaker F] The whole problem is managing affairs. Suppose I had another way to manage affairs so that murderers wouldn’t increase—then would you kill him? In my view they agree with them in principle. Fine. You’d exempt him from punishment too. He himself—Rabban Gamliel would exempt him from punishment. No person would ever be executed.

[Rabbi Michael Abraham] That comes out more strongly, but the harder question is this. Why? Does Rabban Gamliel also agree with them to exempt?

[Speaker F] Yes, but when he answered them he said, “You would increase murderers.”

[Rabbi Michael Abraham] I need to manage things. You’re proposing a different answer. You’re saying that if we exempt every person because of repentance, then there won’t be deterrence, right? We’ll get to that in a moment. We’ll get to that in a moment. There are those who want to make that argument—the Noda B’Yehuda. In a moment. So…

[Speaker B] But that still doesn’t solve the question of why you kill him. For deterrence you kill someone who may no longer deserve it?

[Rabbi Michael Abraham] No, not that he isn’t a murderer. He is a murderer; he repented. Does he deserve the punishment?

[Speaker B] Why? He repented. Why does he deserve the punishment?

[Rabbi Michael Abraham] Fine, he did commit the transgression. He committed the transgression. Okay, I’ll get to that in a moment, but in the deterrence conception of punishment, all punishment is like that. Basically, as far as the person himself is concerned, I’m not really supposed to punish him. The whole reason I punish him is to produce an external deterrent effect on society. If that’s so, then even if the person is guilty—and again, if he doesn’t deserve punishment at all, you don’t just grab an innocent victim—but this person committed the sin intentionally, with witnesses and warning and everything. Now I need deterrence; it doesn’t matter that he is now innocent… that’s the deterrence conception. You can object to the deterrence conception of punishment, which is basically what Itzik said before, because it’s not clear punishment really… fine, maybe you can deter by means of the dome-cage, maybe by all kinds of other means.

[Speaker B] There’s no deterrence—but you only give punishment as deterrence to someone who deserves punishment.

[Rabbi Michael Abraham] What? But in that case you won’t give this punishment to anyone, because everyone will say they repented, and there’ll at least be doubt whether they repented or not, and you won’t punish—so what deterrence will there be? Anyone can say, I murdered and afterward—I’ll say I repented, and because of doubt he won’t be punished. Okay, we’ll get to that in a moment. So the first difficulty that appears in the Chida’s words, on the Chida’s approach, is the issue of doubt. Meaning: how can you kill a person, and at least because of the doubt exempt him? The second difficulty, which to my mind is even harder, is that religious court does decide about a person whether he repented or did not repent in many places. I’ll just give you examples. Shulchan Arukh—in Shulchan Arukh it says that a thief and likewise a robber are disqualified from testimony in siman 34 in Choshen Mishpat, from the moment he stole or robbed, and even though they returned what they took, until they repent. And only when they repent are they restored to fitness. Now who decides whether they repented? Religious court, obviously. Meaning, religious court disqualified them; if they repented, religious court says: okay, they repented, they return to fitness.

[Speaker B] But here it’s a different situation. It’s not punishment for the act, but because of the act you become such-and-such—a disqualified witness or something.

[Rabbi Michael Abraham] But still—if he repented—yes, but can you not get to the bottom of his mind?

[Speaker B] I understand, but basically—

[Speaker E] The criteria—if this is—

[Speaker B] —a different level, then—

[Speaker E] What does it mean that they determined it?

[Rabbi Michael Abraham] Doesn’t matter. Those criteria are indications; they are not objective criteria. They are indications that this is a genuine penitent.

[Speaker E] Let’s assume he got there, that he’s a genuine penitent.

[Rabbi Michael Abraham] Obviously he needs to—why not?

[Speaker E] No, but let’s assume that with respect to fitness for testimony he’s not disqualified.

[Rabbi Michael Abraham] Why did those criteria come in?

[Speaker E] If not in order that before he was one way and now he is—

[Rabbi Michael Abraham] —acting differently.

[Speaker E] Fine, so he’s a penitent. What’s the problem?

[Rabbi Michael Abraham] Contributing to the stability of society is not a disqualification of wickedness. It’s not a disqualification of wickedness. Someone who doesn’t engage in building society is disqualified from testimony because he’s an idler; there’s no reason to take his words seriously. But a wickedness issue—a thief, a robber, I don’t know, someone who eats pork, someone liable to a punishment that carries lashes or death—that is called wicked. “Do not join hands with the wicked.” Or a monetary wrongdoer—a violent wicked person, meaning someone who committed a monetary transgression. Fine, it’s the disqualification of wickedness. Now the question is: how do I return to fitness? Religious court determines that I repented. Religious court can determine that a person repented for the purpose of restoring his fitness. So if for the purpose of restoring his fitness—which, all in all, if he remains disqualified, it’s not the end of the world—it’s good enough that religious court determines it, then with regard to killing him—I connect this to the previous difficulty—then with regard to killing him, won’t you at least treat that as some kind of doubt or something? Yes, I’m attaching it to the previous difficulty. How can you say that religious court can’t get to the bottom of a person’s mind? I don’t know—it’s very hard for me. In siman 34 there are a lot of these things. There are other contexts too. For example, in the Mishnah in Yevamot 22a it says that a mamzer son exempts his father’s wife from levirate marriage, and he is liable for striking his father and for cursing him. If he strikes or curses his father and mother, then he is liable, even though he is a mamzer. He is still his father’s son. So the Talmud there asks: but the father is not one who “acts as one of your people”—how can he have a mamzer son? Because he had relations with one of the forbidden sexual unions, a married woman or something like that. And one is not liable for striking someone who does not act as one of your people. Fine? So they answer that the father repented. Once he repented, then the son is indeed liable for striking him. And then Tosafot there writes—Tosafot there on the spot writes—that if the father is liable to lashes or excommunication, he would not be exempt from that by repenting. He notes: so why does repentance help here? There are various distinctions there. Again, on the one hand repentance does not help in court punishments; on the other hand, that’s only in court punishments. But there are things for which religious court can indeed determine that the person repented. So you see that it is not some fundamental inability of religious court to determine whether a person repented or not, but rather there is something specific about court punishments where it does not help. Maimonides also rules this as Jewish law, by the way. That if they repented, they are still liable and are executed for them, even though they are going out to death. So they won’t be exempt from the punishment, but if they repented—if his son cursed or struck him—then he is liable, liable to punishment. So you see the rule there in itself: with respect to the death penalty, you do not exempt him because of repentance, but religious court can indeed determine that the person repented for other matters. There is also the case of the apostate city, with all sorts of interesting discussions. In the apostate city there is a law that appears explicitly. Maimonides writes as follows in chapter 4, law 6 of the Laws of Idolatry: And what is the law of an apostate city? When it is fit to become an apostate city, the Great Court sends Torah scholars to warn them and bring them back. If they return and repent, all the better. And if they persist in their folly, the court commands all Israel to go up against them in battle, and they besiege them and wage war against them until the city is breached. Meaning, if they repent, then they are exempt from the law of the apostate city; but if not, then the law of the apostate city is carried out upon them. On that the Raavad comments: Abraham says, it is a good thing that repentance should help them, but I have not found repentance to be effective after warning and action. That sounds very logical and correct to me—that repentance really should exempt them from punishment—but we haven’t found such a thing. If a person is liable to punishment, repentance does not help him escape it. So why here, if those Torah scholars bring them back, does repentance help them escape? And in Migdal Oz he emends the text there and says: I wonder why it should not help after anything in the world. For it is written, “Return, wayward children.” And if it is as stated in Rosh Hashanah and in the Jerusalem Talmud, Pe’ah—that repentance is great, reaching the Throne of Glory—and “Return, Israel, to the Lord your God,” meaning, it reaches all the way to the Holy One, blessed be He. So he says: I wonder, why really shouldn’t repentance help? He agrees that repentance does not help, but he is very puzzled: why indeed does repentance not help in the laws of religious court? But for our purposes—I’m bringing this not because… it just joins the Chida’s questions and the Noda B’Yehuda’s and everyone else’s—but for our purposes, again, you see here that religious court can determine that the residents of the city repented and exempt them from the law of the apostate city. So beyond the question of how that exempts them from punishment—which I think one can understand, because the law of the apostate city is not exactly punishment in the standard sense, and here perhaps there is more of an element of warning than of—deterrence, sorry—than the element of punishment, after all it’s something collective—but as for the determination itself, that religious court can indeed determine that a person repented, and the Chida is not right that it is not within the court’s power to determine it, meaning that it cannot determine it—that really is good evidence. Because the fact is that religious court in certain circumstances can indeed determine whether repentance occurred or did not occur. Therefore the Chida’s words seem a bit difficult to me.

[Speaker F] I think it’s possible to answer him.

[Rabbi Michael Abraham] It’s Dovev Meisharim, the Tchebiner—he gave this answer, that there’s a difference between doubt, that there’s a difference between doubt whether you are liable and doubt that would exempt you.

[Speaker G] But—

[Rabbi Michael Abraham] That’s a rosh yeshiva distinction. Meaning, it’s a yeshiva-head kind of distinction. Meaning, you’re sitting in judgment—fine, that’s what I wrote on the site—you’re sitting in judgment, and you say there’s a fifty-percent chance the person repented. As a judge, are you going to kill him? In yeshiva you make distinctions; the question is on whom the burden of proof lies regarding whether he repented or not.

[Speaker B] And you could say the same thing in criminal law too. Suppose sentence was passed—after all there’s a whole sentencing process. You have to bring evidence about all kinds of things to mitigate his sentence, I don’t know, that he served in the army and so on. And suppose there’s doubt there?

[Rabbi Michael Abraham] Yes, but that’s sentence mitigation. It’s not because he deserves leniencies regarding his offense itself, but because he deserves bonuses for other things. But if you say there’s doubt whether he withdrew from the offense itself, whether he cleansed the offense—how can you, especially when we are talking about the death penalty, which we don’t have in our legal system—it’s hard to accept such a thing. I don’t know, we talked about this when I spoke about scriptural decrees. Once there was a whole series about scriptural decrees, reasons for the commandments, and so on. So I spoke there about our… the disqualification of relatives from testimony. I also spoke about it in the context of migo, with migo and conduct in religious court. Yes, if there are two relatives, we disqualify them from testimony. It’s easy for us to accept because we’re already used to it. It’s a scriptural decree. Maimonides and the Shulchan Arukh bring it, and the source is in the Talmud in Bava Batra, that it is a scriptural decree. But in principle, relatives give truthful testimony. There is no suspicion that their testimony is false. But it is a scriptural decree not to accept their testimony. So on that I asked: what happens if two witnesses come and testify that Reuven murdered Shimon, or desecrated the Sabbath, liable to death, with witnesses and warning. And now two other witnesses come, who are relatives—two brothers—and they expose the first ones as conspiring witnesses. So if they expose the first ones, then if they were valid witnesses, the second witnesses would be believed and the first ones would receive the punishment of “as he intended to do.” The first witnesses are disqualified and receive the punishment of “as he intended to do,” and of course the one accused of murder and the like is acquitted, because it turns out this was false testimony. Now two brothers come. The assumption is that they are truthful witnesses, but there is a scriptural decree not to accept them. So as far as the question of truth goes, the truth is that the two witnesses who said he murdered are liars. That is the truth. But the scriptural decree is not to accept…

[Speaker F] No, but Rabbi, I didn’t understand—the description is very vivid, very sharp. They will accept the testimony of those two brothers and not put him to death, but those first two, the now-exposed conspiring witnesses—they also won’t be put to death? Obviously not. Obviously not.

[Rabbi Michael Abraham] I’m talking about the murderer.

[Speaker F] I know you’re talking about the murderer, because that sharpens it even more. But in all the other examples too, the difference is substantial.

[Rabbi Michael Abraham] The difference is between punishing and not punishing—that is exactly the point.

[Speaker F] Right, but to accept repentance so as to restore someone who had been a witness but was a robber, and now after three years to accept testimony from him because you see the person returned to the proper path—that’s not repentance in the sense of “I have sinned, I have transgressed, I have rebelled” for five minutes. After three years. After three years that you put him under excommunication and didn’t accept from him and he was…

[Rabbi Michael Abraham] After three years in which he—

[Speaker F] —repented, then exempt him from death. What’s the problem? Same thing. It could be that yes. It could be that really they would exempt him from death if they had any doubts at all. But it says they don’t.

[Rabbi Michael Abraham] It says they don’t when… after three or I don’t know how much time it took them to execute him. I don’t know—let them wait. If they see he is—

[Speaker F] —a penitent—they don’t know. The Chida says: we don’t know. Okay, so wait. If for three years he’s such a penitent and so on, then that’s it, exempt him. Yes, but again, in my opinion he’s talking about cases where the transgression he committed has very significant broader ramifications. Meaning, it affects society, it affects things dramatically. You can’t wait around with every offender and say let’s wait with him. Why?

[Rabbi Michael Abraham] If he repented, why not?

[Speaker F] Because in order to know, the criterion that he repented has a cost on the other side. What cost am I paying?

[Rabbi Michael Abraham] So again we’re back to the question of deterrence. I said we’d get to that.

[Speaker F] Not only deterrence—also warning, sorry—not only that, but even in the very process of investigating his repentance.

[Rabbi Michael Abraham] What’s the problem? Investigate. Why not?

[Speaker F] I heard this week some Knesset member about the severity—this Knesset member who resigned because he was at his nephew’s wedding or something like that. Right. So Rabbi Amsalem came on—yes, he was speaking—and he said something correct. He said: listen, today there’s no one there with broad enough shoulders. If Rabbi Ovadia were there, fine, he would call that Mr. Guetta, give him two smacks, say to him, not good, what did you do, Guetta, and put him back, and the story would be over.

[Speaker H] And think that nothing happened here.

[Speaker F] No, I read it, I definitely read it. I’m talking about the post, but it analyzes the pure truth, not the case itself. If there were—what I’m saying is, he said it correctly and it really hit the point—give him two good slaps like that and tell him, “What you did was very bad,” send him back to the Knesset, and move on. Now what? Now there’s a mess. Why is there a mess? Because there’s nobody here with broad enough shoulders. They know this phenomenon can’t be stopped. For our purposes, you can’t accept his answer that he repented. Why not? I’m saying because there aren’t broad enough shoulders—judges with broad enough shoulders. In the Sanhedrin, I assume that with the complexity of two brothers coming who are valid witnesses, and a panel that sufficiently respected and distinguished—

[Rabbi Michael Abraham] I’m talking about a distinguished panel, not—

[Speaker F] the Chief Rabbinate court.

[Rabbi Michael Abraham] No, and I’m not talking about the Chief Rabbinate court. Who judges capital cases? Capital cases are judged by a Sanhedrin of twenty—

[Speaker F] three, or a Sanhedrin. In my opinion, if two such witnesses came, they’d acquit him. I don’t think—well, they’d acquit him too, but that other guy also wouldn’t be executed. They’d make some other arrangement for him.

[Rabbi Michael Abraham] So that’s what—

[Speaker F] I’m saying. That’s what I’m talking about. But why is it like that? Because these aren’t such clean cuts like you describe.

[Rabbi Michael Abraham] That’s what I’m talking about. What do you mean, not a clean cut?

[Speaker F] But in that same situation, when he tells them, “Guys, I repented”—yes, they won’t accept that from him so easily either. He has to prove it.

[Rabbi Michael Abraham] I didn’t say easily. Who said easily? Why easily? But if they were convinced that he repented, like in the example I brought from the Shulchan Arukh—

[Speaker F] Yes. That some robber—whose testimony we wouldn’t accept anyway—and they’ll place him under excommunication, so—

[Rabbi Michael Abraham] and for how long, and if he repented—

[Speaker F] then we’ll accept his testimony. That’s not right. If he repented, we’ll accept his testimony. But what’s the criterion that he repented? Not that he stood before the court and said, “Friends, I repented.”

[Rabbi Michael Abraham] No, that he appears to be a genuine penitent.

[Speaker F] So when they see that, right. When they see it, he’s already received the punishment, because he’s already been under excommunication for some period.

[Rabbi Michael Abraham] So then what—I don’t understand the claim. If they decided he repented, then he’s exempt.

[Speaker I] Pure Jewish law, not repentance.

[Speaker F] But pure Jewish law is complex; it’s not black and white, not just “come on.”

[Speaker I] No, it’s exactly like that. No, it’s not exactly like that. Jewish law is Jewish law.

[Speaker F] No, the fact is that in the Shulchan Arukh, all the examples the Rabbi brought from the Shulchan Arukh, where they accept him back, his repentance is about a robber whom the court saw had repented—it’s not that he stood before the court and said, “I have sinned, I have transgressed.” Obviously not. We’re talking now about whether he repented. Now you want to obligate someone to die—so one witness will now testify that he did—

[Rabbi Michael Abraham] Yes, at the same time that about the one who is now going to die, I’m also saying that he did genuine repentance—what?

[Speaker F] After he returned.

[Speaker B] Yes, but the same thing—

[Rabbi Michael Abraham] that that same person who is liable to death is also speaking about genuine repentance that people saw—not that he said, “I’m returning.”

[Speaker B] That robber who stole—is he liable to lashes for robbery? Liable? No, no, there are no lashes.

[Rabbi Michael Abraham] No, no, only money and restitution.

[Speaker B] What? A prohibition linked to a positive commandment of payment.

[Rabbi Michael Abraham] Assume he ate pork. He ate pork with witnesses and prior warning; he is liable to lashes and disqualified from testimony.

[Speaker B] So what happens now? If the court decided he repented, he’ll receive lashes and be fit for testimony. Exactly. He’ll receive lashes.

[Rabbi Michael Abraham] Yes.

[Speaker B] He’ll receive lashes and be fit for testimony.

[Speaker F] He’ll get the punishment, so to speak.

[Rabbi Michael Abraham] Right.

[Speaker F] He paid his debt, and the damage isn’t that great.

[Rabbi Michael Abraham] He paid his debt. By the way, that’s a different discussion. There’s a big question in Maimonides.

[Speaker F] But look, Maimonides writes that if the generation is morally breached and he ate pork, then they’ll execute him.

[Rabbi Michael Abraham] That’s incidental, technical, fine—those are exceptional cases. A court sometimes administers lashes and punishments not according to the formal law. I’m talking now about the law itself. So what I actually want to say is this: I mentioned the Tchebiner, who said there’s a difference between the question of whether you’re coming to obligate him or exempt him. And I said I don’t think judges would make that distinction in order to kill someone. Meaning, with all due respect to this analytic distinction—which is correct on the analytic level—still, if you have fifty percent and he’s exempt, you don’t kill him. True, the burden of proof is on him. Fine, so I’m in doubt. In general too, if I need certainty, then you’re right—he didn’t prove it to me. But in order to exempt him, it’s enough that I be in doubt. And the fact that I’m in doubt means he doesn’t need to prove to me that I’m in doubt—I am in doubt. He needs to prove to me that one side of the doubt is correct. But here he doesn’t need to prove that one side is correct; it’s enough that I be in doubt in order not to kill him. I’m just saying: a person who is standing there—that’s the difference between a discussion in the study hall, that’s what I wrote there, the difference between a discussion in the study hall and a person who actually has to do this. Someone sitting in the study hall has distinctions, and everything is brilliant, wonderful, beautifully structured.

[Speaker B] Like a law professor and a judge. Exactly.

[Rabbi Michael Abraham] But a person who now has to instruct that this defendant be put to death—such a person, when he says, “I’m in fifty-percent doubt whether he repented, and only because I don’t know, so kill him?”—he won’t do such a thing. It just won’t happen. It won’t happen. And rightly so, it won’t happen. So the example I brought for this was from conspiring witnesses, when there are two brothers who expose two witnesses regarding a murder. So I said there: obviously, the exposed witnesses do not receive “as they intended,” and if someone testified against them and made them liable to death, and those were two brothers, then that is a scriptural decree not to accept their testimony—that’s clear. But we also won’t kill the murderer. Why? After all, we didn’t accept the last witnesses because it’s a scriptural decree not to accept them, so the first witnesses remain valid, and they testified that he murdered. True—but he didn’t murder. The fact is that he didn’t murder. So there is a scriptural decree not to accept them, but you can’t kill someone when factually you’re convinced he didn’t murder, or at least you have serious doubt that he murdered. You can’t kill him; there’s no such thing. Now, everyone I asked among the analytic scholars around me said, “Of course they’d kill him.” Are you people normal? Everyone I talk to.

[Speaker B] Fits your lecture about a state of Jewish law.

[Rabbi Michael Abraham] What, there?

[Speaker G] In a state of Jewish law, they’d kill him.

[Speaker B] No, no, absolutely not. No, no. I’m talking about a state of Jewish law.

[Rabbi Michael Abraham] No, no, that’s what I thought. The opposite. In a state of Jewish law, where they’d really have to implement it and not just engage in pilpul from their armchairs, they wouldn’t do it, obviously not. Today we can muse and chatter because in any case nobody is doing anything with it. So you have this distinction and that distinction, and everything is very logical and correct, but practice is stronger than all these things—and rightly so, by the way. Good that it’s that way. Not weakness? No, no. These things—this is one of the things that happened when I got older. Some people say not, I don’t know. But at the beginning I really looked down on practical Jewish law, because practical Jewish law is this kind of thing that isn’t properly structured. You see people making considerations a little this way, a little that way—sort of logical, not logical, proportionality, lack of proportionality. Who cares? There’s analysis, there are distinctions, do the work properly. What are these—

[Speaker G] these games, this householder mentality.

[Rabbi Michael Abraham] Is that an option? Yes, exactly. So at a certain stage I suddenly saw that this is so childish. Meaning, these “householder” considerations have a lot of logic behind them, and these analytic distinctions—well, with all respect, they have their place, I don’t dismiss them, I live from them, I identify with them—but that’s only the infrastructure. After that, common sense also has to come in. We talked about this once. I think I brought this example of that penitent of mine whom I accompanied. That’s where the penny dropped for me. He lived in some small Haredi community, and as is typical of small communities, they tend to be stricter than a city. In a city you can be a bit unusual and it’s not terrible—a Haredi city like Bnei Brak or large neighborhoods in Jerusalem. But in small communities, sometimes small Haredi communities are more rigid, more strict. So all kinds of people came to him with all kinds of craziness. He rode a bicycle; they told him, “That’s not done,” meaning an avrekh doesn’t do things like that. He walked with a student bag on his back like that—he was a student—so they told him, “An avrekh doesn’t walk around with things like that; take a plastic bag in your hand.”

[Speaker F] From the health fund. Yes.

[Rabbi Michael Abraham] Now his name was some Israeli name, and they told him, “Change it—Mordechai Yitzhak,” names like that, yes, not things like that, it’s not suitable. So he called me and said, listen, he doesn’t understand what they want from him, these guys coming to him—what’s going on there? So during the conversation, I remember, that’s when the penny dropped for me afterward. I wrote about it more than once: there is something about the way Haredi society operates that is very problematic, because the Sages tell us that an ordinance or decree that was not accepted by most of the public is null. Usually—here I return to the question of weakness—people usually understand this as some kind of weakness. Meaning, you have to compromise with reality. What can you do, really this was correct, but you have to compromise with reality, and in reality people are too weak, it doesn’t work, so you have to take them into account, and therefore the decree is null. I claim that’s not true. If the decree is null or was not accepted, that is an indication that it is not correct. Meaning, the scholars who determined, or the court that determined, that decree or ordinance got feedback from the street showing them that they were talking nonsense.

[Speaker B] Go out and see what the people are doing.

[Rabbi Michael Abraham] Go out and see how—

[Speaker B] the public behaves.

[Speaker E] Democratic, yes, democratic. Only regarding decrees and ordinances? Isn’t that only about things that—

[Rabbi Michael Abraham] No, what difference does it make whether it’s decrees and ordinances or not? Everything. Everything that is created in court or in the study hall or somewhere that is not in contact with the street needs feedback from the street. There’s something in the street—there’s this disdain for common householder sense, and there is something to that disdain, but on the other hand there is something in common householder sense that is very necessary to balance the analytic learning, this scholarly analysis that can lead you to all kinds of conclusions that are obviously—to any sane person—this is… Bnei Lau once wrote, I saw, that one of the problems of our generation is that leadership is not in the hands of rabbis but in the hands of yeshiva heads. Let’s say the big political leaders and those who make decisions are yeshiva heads. Ever since Rabbi Shach as a yeshiva head. And not the rabbis. What’s the difference? Yeshiva heads are constantly dealing with eighteen-year-old kids, and they’re all brilliant and challenge them and don’t let them—yes, yeshiva heads. And they test them for consistency and present a brilliant argument, and you have to be talented to deal with these guys; they’re not easy, certainly not in the good yeshivot. But you don’t deal with the fact that what you’re saying simply doesn’t hold water. Nobody will tell him that. What they’ll tell him is, look, there’s a contradiction between what you said there and what you said here, and I have a difficulty from there and a difficulty from here, and what a wonderful distinction—and everyone will melt with pleasure because it’s brilliant. But he’s talking nonsense. Now, that’s something an adult needs to tell him. Meaning, a rabbi deals with adults—with people who are educated and know how to think and already have life experience. These are not eighteen- or twenty-year-olds who are testing his logic. Someone tells him, “Listen, what you’re saying doesn’t make sense, that’s all. Go home and do your homework.” It’s not, “We found no contradiction in your words and your distinction is wonderful, everything is fine, I’ll even bless over Torah study afterward.” But it isn’t real; you can’t work with these things in practice. There is something in common householder sense, despite all the contempt shown for it in the yeshivot or in the study hall, that is very necessary to balance the—

[Speaker F] It’s experience, yes, right.

[Rabbi Michael Abraham] Experience versus theory.

[Speaker F] Engineering completely, day to day.

[Rabbi Michael Abraham] Yes, right.

[Speaker E] And not riding a bicycle with a bag—that’s common householder sense, because it doesn’t come from any—nobody derived it from any Talmudic passage—

[Rabbi Michael Abraham] No, no, I didn’t want a comparison. I’m bringing another example of how what happens—let me return now to the bicycle and the bag. What’s the claim? The claim is that once some norm is created in the Haredi world, it is tested against avrekhim and yeshiva boys. It is not tested against the ordinary person on the street. And that’s how all kinds of crazy norms can arise, like needing to walk with a plastic bag and not with that, or changing your name, or all kinds of things that of course have no basis. But because they get in and people suddenly feel there’s some sort of fear of Heaven in it—it’s a full analogy to what came before; I’m illustrating the principle. Now, in principle, this should have gotten feedback from the people in the fields. Meaning, the ordinary person on the street should come and tell you, “Listen, stop babbling, this is nonsense.” A normal adult. Now what happens in Bnei Brak or in Haredi society? If someone says such a thing, then he isn’t God-fearing. We don’t pay attention to householders; they don’t count. We take into account the public, not the world—meaning the questioners of the public. That’s not the world. The world is just ordinary people; the public is the people sitting in the study hall. And what happens as a result is that decisions are formulated and made inside the study hall, basically among theoreticians. Okay? Who of course are also willing to implement it, but ultimately it’s among theoreticians, and they don’t receive that feedback from the… from the simple person, the common sense that says something here isn’t logical. Yes, exactly. They built an entire public that is all theoretician, and whoever isn’t like that, his opinion doesn’t count. Now, that is a mistake, because they perceive this as surrender to weakness—to listen to that criticism from the householder, yes, from the outsider—whereas I think that’s a mistake; it’s exactly the opposite. Meaning, to listen to his criticism is to receive a correction of common sense to the intellectual structures you’re building in the study hall. And if you lack that, you arrive at problematic conclusions. Your conclusions are problematic. It’s not that you don’t have to compromise—on the contrary, you’re going for what is most correct, for the ideal. No, you’re going for something incorrect. If something doesn’t suit the public, then it is also not right to do it in the study hall—in principle, as something binding. Again, anyone can come and decide that for him it reflects an extra spiritual level, so he does things anyway. There is a place for doing things beyond the binding standard. But certainly not to establish something as a binding norm when it doesn’t hold water, when common sense rejects it. So in this context too, many times these determinations and distinctions can be said in the study hall, but in life—and the beauty of practical halakhic ruling is something I discovered very late. The way to integrate it with study-hall thinking—not replace it, not say, okay, throw everything in the trash, now let’s think whatever the gut says—but rather to let common householder sense critique analytic reason, and vice versa.

[Speaker H] Rabbi Chaim once sent—

[Rabbi Michael Abraham] a Jewish law question to Rabbi Yitzchak Elchanan and told him, “But don’t write me and don’t bring me reasons—I’ll knock them all down.” Rabbi Chaim sent that to Rabbi Yitzchak Elchanan. By the way, Rabbi Chaim was a city rabbi. Rabbi Chaim was a city rabbi; he was the rabbi of Brisk, and he behaved like a scholar even though he was a rabbi. He sent a question to a rabbi and said, “But without reasons.” Fine, in any case, let me return to our matter. The Chida’s claim that a court cannot know what is in a person’s heart is a problematic claim. A problematic claim because at least in matters of doubt—and certainly, I say, judges, not in the study hall—judges will not execute in such a case if they are in doubt, if the truth is that repentance really exempts and the whole problem is only that I don’t know whether he repented or not. Therefore I say that apparently it must be that the truth is that repentance does not exempt, even if I do know. Fine, then that’s what the Jewish law says. But if the truth were that repentance does exempt, and the whole point is only that I don’t know whether he repented or not, I don’t think that’s a sufficient explanation. Now, the Noda B’Yehuda asks the same question, and there there is a very interesting answer of the Noda B’Yehuda. Once, many years ago, we learned it here when we spoke about responsa. There was a year when we dealt with responsa, and we read this responsum. It’s Orach Chaim, siman 35. There’s some groom there, and it turns out he committed adultery with his mother-in-law, and now he asks whether he has to reveal to his father-in-law, reveal to his father-in-law that he committed adultery with his wife. In short, an awful mess there, never mind. So the question is whether he must reveal it to him; they get into various discussions. Among other things, the Noda B’Yehuda discusses our question there: whether repentance helps exempt from punishment. So he says there: “And know that this, beyond any doubt, repentance atones with complete atonement, and this is well known in Torah and Prophets and Writings and in both Talmuds and in all the midrashim. And the prophet says, ‘When a wicked man turns from his wickedness, all his sins that he committed shall not be remembered against him.’ And also this is beyond doubt: at a time when the Sanhedrin was practiced, if one transgressed a capital offense in the presence of witnesses after warning, even if the witnesses delayed and did not come to court for many years, and meanwhile this person repented and undertook many afflictions and fasts beyond number, more and more than the balancing repentance mentioned in the Rokeach”—the Sefer HaRokeach gives balancing repentances, what afflictions one should do for each transgression—“and after all that repentance the witnesses came to court and testified, certainly the court pays no attention to his repentance and burns or stones according to the punishment of the sin.” Even though it is clear that repentance fully atones and makes you clean, to that same degree it is clear that it does not help exempt from court-imposed punishment. “And the matter is wondrous,” says the Noda B’Yehuda, “since certainly the repentance was effective and his iniquity has departed and his sin is atoned for—why should he die? ‘Do not kill the innocent and righteous,’ it is written. And in the Talmud they said at the beginning of ‘Those who receive lashes’: those liable to death who repented, the court does not forgive them”—that is the Talmudic passage I brought earlier. “Rather, certainly it is a scriptural decree,” says the Noda B’Yehuda, “for otherwise the punishments of the Torah would in general be nullified. Consider for a moment, Itzik: no person would ever be executed by the court, because he would say, ‘I have sinned and behold, I have repented.’” Every person who sinned would say: true, I sinned, but now I have repented, so they would exempt him. So basically you have a green track: you can murder, you can desecrate the Sabbath, you can do everything, and fine, do it, and afterward inform the court that you repented and be exempt. “And since the Holy One wanted to impose the death penalty for certain sins so that a person would be deterred from transgressing”—the deterrence element—“therefore it is necessary that repentance not help save from court-imposed death.” Therefore, says the Noda B’Yehuda, it cannot be that repentance helps save from court-imposed death. Again, the assumption—the basic assumption—is that repentance really should have helped. It’s not that there is something essential here. Rather, the punishment is emptied of content if we accept repentance in order to exempt from court-imposed death. Because then everyone would get exempt and say he repented, and at the very least you have doubt, and because of that, you can’t—you exempt him. Then afterward he continues his discussion. That’s what matters for us. So that is the second possibility. Here too there is some room to note what Shmuel said earlier. There are other ways to deter a person—to deter him, sorry. You can deter him simply: give lashes, not death, or put him in a cell. But on the side of “the congregation shall save”—to exempt him from court-imposed punishment—more or less to exempt him from court-imposed punishment also because of repentance. If the assumption, again, is that repentance in itself, fundamentally, should have exempted. If the whole problem is only deterrence, then do what you need to do in terms of deterrence. But that should have been something not according to the strict law, not something that is according to the strict law. If the court sees that the hour requires it, then it may punish anyway because it is not according to the strict law. But on the principled level that is not the binding thing. There is the story of Shimon ben Shetach there, with witnesses who retracted—they testified about his son and retracted, and it turned out the son had not sinned at all, and he became liable to death and they killed him. A kind of Socratic story. Yes, yes, kill me, because the witnesses said so about me even though I’m not—it’s really a Socratic kind of story. But I think that story is not really what ought to be. Rather, there he truly saw that the hour required it and there was a need to strengthen the matter. He said, yes, if it was proven in court that I did this act, then they need to kill me so that the public will know. Just as Tosafot brings that midrash in Bava Batra, that midrash about the wood-gatherer. Yes, that the wood-gatherer actually wanted to show the people of Israel that one is punished by death for desecrating the Sabbath, and therefore he gathered wood on the Sabbath. In fact, he didn’t really want to gather wood; he was righteous. Then Tosafot asks: so why did they kill him? After all, that is labor not needed for its own sake. Exactly. Because he was actually gathering not for the sticks but in order to show. That’s Tosafot there in Rosh Hashanah. And such a strange difficulty—after all, obviously the court didn’t know that. He didn’t tell the court, “I gathered wood in order to show the people of Israel,” because then he would have ruined the whole point. So the court didn’t know he gathered wood for that reason; he acted the criminal. So what kind of difficulty is that? In any case, the claim is that in a case where the hour requires it, it could be that the court will kill. But to establish that as the permanent halakhic standard still seems difficult to me if one really accepts the basic assumption that genuine repentance exempts from court-imposed punishment—which the Noda B’Yehuda also agrees with.

[Speaker E] Why by force? Because from how I heard you, I understood that he accepts that this is an indication that it doesn’t work, but not because the reason is deterrence. Otherwise they really wouldn’t punish people; the Torah’s punishments wouldn’t be upheld. The Torah made punishment—

[Rabbi Michael Abraham] Why does he bring in deterrence? He’s talking about deterrence.

[Speaker E] He talks about it and—

[Rabbi Michael Abraham] No, it seems forced to me. He talks about deterrence. He says deterrence won’t be achieved—that’s simply his argument. But let’s now take one more step forward. I’ll already say what I want to say. Meaning, I think there is also the Maharal—soon we’ll see whether we have time to look at him as well. The Maharal argues that by strict law repentance does not help regarding court-imposed punishment. Meaning, he has two explanations there why not, but he argues against the basic assumption of the Chida and the Noda B’Yehuda. I want to argue, following the whole move we’ve seen in the previous classes, that repentance—if you did substantive repentance, great repentance—then it will help exempt from court-imposed punishment as well. If you did the technical repentance, the four stages—regret, abandoning the sin, resolution for the future, and verbal confession—then it won’t help. Everything that was said, that repentance does not help exempt from court-imposed punishment, refers to ordinary repentance, the repentance discussed in the laws of repentance. But substantive repentance—if a person really turned himself around—nobody will kill him. Meaning, it helps even against court-imposed punishment. Now I’ll present this as a difficulty on the Noda B’Yehuda. The Noda B’Yehuda basically says that if we exempt a penitent from court-imposed punishment, then we have emptied court-imposed punishment of content, because anyone who became liable to death or lashes will say, “I repented,” and at least because of the doubt we will exempt him. Now if I really say—and this is what I asked against the Chida—that the court will examine whether he really repented—what’s the problem? If he truly repented, then exempt him; if not, then don’t. So this isn’t someone who comes and says “I repented” in order to escape punishment, but rather he really repented. Fine, very good—if he really repented, truly exempt him. If he did not repent, then there will be punishment; impose punishment if he is only lying or did not fully repent. But if the court can examine him, then let it examine him and decide whether he repented or not. And if it indeed reaches the conclusion that he repented—and we saw that a court can do this; we determine that a person genuinely repented for the purpose of testimony fitness and the like—then here too, let it exempt him from punishment. So the Noda B’Yehuda, again, even though he goes in a different direction, assumes the Chida’s assumption that the court apparently cannot know with certainty whether the person repented or not. Because if the court could know, I don’t think he would have had a difficulty. If he truly repented, then the court really could exempt him. But it’s not true that anyone can just come and say, “I repented.” If he says, “I repented,” that’s not enough; he has to convince the court that he is truly a genuine penitent. The Noda B’Yehuda apparently understands that it’s impossible—the court cannot determine such a thing, like the Chida. But that is difficult—that is difficult from all the places we saw. And therefore I actually want to argue that the Noda B’Yehuda’s question is not difficult. The claim is that genuine repentance really does help. Technical repentance—the technical repentance—does not help exempt from court punishment; it is accepted in the heavenly court, it is beyond the letter of the law, but it does not exempt from court-imposed punishments. Then the Noda B’Yehuda’s difficulty does not arise. Why? Because it’s not true that anyone who committed a transgression can come to court, say “I repented,” and be exempt. That’s not true; he won’t be exempt. Only if really—it’s like there’s no point disqualifying from testimony, because anyone you disqualify from testimony will say “I repented” and be fit for testimony. He won’t be fit. Only if the court checks those three years we talked about earlier, or whatever, and sees that he really behaves differently, and that he genuinely repented, and that he won’t even lend with interest to a gentile, that he distances himself even from things that are permitted—then he is a genuine penitent. In such a case, we really would exempt him from punishment. And what’s the problem with that? It doesn’t empty the punishment of content. On the contrary, that’s how the punishment achieves its purpose. After all, what could be better than the punishment succeeding in bringing the person to repent? Only, in the background of course, there is always the threat that the punishment will be applied if we are not convinced that you are a genuine penitent.

[Speaker B] Is there any source at all that says there is such a situation of being convinced?

[Rabbi Michael Abraham] One moment. No—so right now I’m speaking in terms of reasoning. At this stage I’m speaking in terms of reasoning.

[Speaker B] All the sources say—

[Rabbi Michael Abraham] that nevertheless it does not exempt in human courts. Now the question is why. So I’m saying what the Noda B’Yehuda says isn’t logical, and what the Chida says also isn’t logical. Therefore I want to suggest a different proposal. I claim that all these sources are talking about small repentance, and great repentance does help. In a moment I’ll prove it. Is there such a source?

[Speaker B] Yes, that’s what I’m looking for.

[Speaker F] When will we give him the blows now and wait? Rabbi, when will we be convinced that he repented? I’m asking technically.

[Rabbi Michael Abraham] Technically, now he’s finished, he’s at the end of the transgression, and he deserves lashes.

[Speaker F] So when will we be convinced?

[Rabbi Michael Abraham] I don’t know. If he repented, let him say he repented and we’ll check. But how will we check?

[Speaker F] How long? And that whole element is missing there.

[Rabbi Michael Abraham] If he comes and says, “I’m a genuine penitent, truly, truly.”

[Speaker F] But everyone will say “truly.” You see him crying and begging for his life, you see the regret, you say he’s surely a penitent.

[Rabbi Michael Abraham] We’ll wait until we’re convinced that it’s genuine repentance and then exempt him. However long the court needs. If it needs a month, a week, a year—however long the court needs. We’re not in a rush to kill him. But if we become convinced that it isn’t serious, then we’ll kill him or give him lashes.

[Speaker G] Let’s go the opposite route. If they’re convinced the repentance is not genuine, then now with the thief—you say after a few years they do return him, even though it’s not genuine repentance, who knows what.

[Rabbi Michael Abraham] Right. What’s the question?

[Speaker G] Yes, that sounds logical.

[Rabbi Michael Abraham] Why not?

[Speaker G] I don’t know. No, if it isn’t genuine because the court tells him, “Listen, we know your repentance isn’t—”

[Rabbi Michael Abraham] Regarding a thief and a wicked person, that has to be understood. Regarding a thief and a wicked person, I said that in Maimonides it implies that those liable to lashes—let’s say they are wicked—and “if the wicked man deserves lashes,” then if someone is liable to lashes he is wicked and disqualified from testimony. If he was lashed, even without repentance, he returns to fitness. The question is why. So the Ketzot writes—not on that—but the Ketzot argues that there are two kinds of wicked people who are disqualified from testimony: a wicked person of monetary violence, and a wicked person liable to lashes or death, someone who is liable to punishment. A wicked person of monetary violence is suspected of lying. He is disqualified because of suspicion of lying. A wicked person liable to lashes is disqualified by scriptural decree, a bodily disqualification; it is not suspicion of lying. Now, if that is so, then it is certainly possible that once he was lashed, the bodily disqualification is removed. Why? Because why was the wicked person really disqualified? It seems to me this is the most reasonable explanation, even though it’s a scriptural decree. The scriptural decree is because it’s not a suspicion of lying—what he says may be true. But why do I disqualify him? There is a logic to why I disqualify him even though what he says is true. More than that: I’m not willing to grant him status. Think about it: a person who, I don’t know, gobbles pork for pleasure day and night, a major pork dealer, selling to everyone. Fine? Now he comes to court and testifies that so-and-so desecrated the Sabbath, and we execute the Sabbath desecrator based on—again, he is telling the truth, I’m not saying he’s suspected of lying. He’s careful about truth. But do you understand what kind of status this gives him? On the basis of his speech they killed a person. Meaning, they accepted his testimony; the court treated what he said with respect and acted according to it, meaning it ruled based on it. The Torah is not willing for such status to be given to offenders. Now, in a case where the offender was lashed, this is what people today call “he paid his debt to society.” Since he paid his debt to society, then socially, in terms of public appearance, fine, he’s already been punished. From this point on we can accept his testimony, because the assumption is that what he says is true. So therefore this operates like a sanction. The fact that I don’t give him fitness for testimony becomes a kind of punishment. It’s not a punishment but public education, yet it functions like punishment. And that lasts as long as he hasn’t been punished. Once he’s been punished, that’s it—he has gone back to being an ordinary citizen. He didn’t repent, and the Holy One won’t forgive him, fine, but testimony fitness is determined according to whether you are perceived as a public wicked person. And from the public’s point of view, if you paid your debt to society, then fine—they understand that you’ve gone back to being a normal citizen even if you didn’t repent. Fine? You returned—you were punished for it, that’s it. So there’s no problem. As long as you weren’t punished, then you’re disqualified from testimony. That’s why, by the way, today it’s really problematic, because today there is no court that administers lashes—this takes us back to renewing ordination. There is no court that administers lashes, and then it comes out that wicked people have no way to return to fitness as long as they weren’t lashed.

[Speaker E] Well,

[Rabbi Michael Abraham] if they repented, that will restore them to fitness even if they weren’t lashed.

[Speaker B] What practical difference does fitness make?

[Rabbi Michael Abraham] Fitness for testimony.

[Speaker E] Does the status of “wicked person” apply to them even without a court? What? Does the status of “wicked person” apply to them even without a court?

[Rabbi Michael Abraham] Yes, certainly. Today’s court can also determine that a person is wicked for matters relevant today. And everything—

[Speaker G] What you said actually raised a difficulty against the approach: how can you say the court can’t determine—look, the court did determine in the case of a robber. And there’s an answer: there’s a public repentance and a non-public repentance, how the public relates.

[Rabbi Michael Abraham] No, public repentance is not determining that he is a penitent. Public repentance means he paid his debt to society; that’s not a penitent. But regarding inner matters—that a person repented—there the court determines that a person repented. What in Maimonides’ specific approach to those liable to lashes—there are things for which repentance is needed, and in those liable to lashes repentance is not needed, it’s enough that he was lashed. So that’s a different example. Earlier I brought proof not from that conception, but from the conception that repentance is needed in order to return to fitness—or in those transgressions where repentance is needed. There are transgressions where repentance is needed, and there are transgressions where it’s enough that you were lashed. So what, are there two—

[Speaker G] tracks? Yes.

[Rabbi Michael Abraham] So I’m actually continuing the argument I’ve been making all along. There are two tracks of repentance. There is the small repentance and the great repentance. And also in this context—whether repentance helps exempt from court-imposed punishments—here too I continue that distinction. Small repentance does not help; great repentance does help. Because if a person transformed himself, then he transformed himself; he truly is someone else. You can’t kill such a person—he is a different person. The same argument I made all along I’m repeating here too. Now I’ll bring you a few proofs of this or at least indications of it. This no longer appears in the article I published, this point. The distinction between great repentance and small repentance also does not appear there; this came to me afterward, and the proofs I’m about to bring developed for me later. Publish a second edition, you’ll say. Look, there is a rule that one who confesses to a fine is exempt. Yes? If a person came and voluntarily confessed that he committed a transgression that makes him liable to a fine—for example, he confessed that he stole—then if that would make him liable to the fine of double payment, or four or five if he slaughtered and sold, he is exempt from the fine. The principal payment, of course, he must pay. Why? Because the principal is compensatory payment—meaning, you harmed someone, return the money, you took from him, you damaged his property, restore the situation to how it was. But a fine is punitive payment. So if you confess to a fine, you are exempt; meaning, you are not liable to that punitive penalty. Why really not? That’s interesting. But let’s look at another law for a moment. There is a dispute between Rav and Shmuel in Bava Kamma and in other places about what happens if one confesses to a fine and afterward witnesses come. I came and confessed that I stole, and afterward witnesses came and said that I stole. So the confession is not enough to make me liable to the fine. But now there are witnesses. Forget the confession; the confession didn’t obligate me to the fine, but now there are witnesses—the witnesses say I stole and slaughtered and sold.

[Speaker B] So does the confession not automatically exempt him?

[Rabbi Michael Abraham] One moment—you’re right. The dispute between Rav and Shmuel is exactly on that question: if one confesses to a fine and afterward witnesses come, is he liable or exempt? That is the dispute. In practice, we rule that he is exempt. The later authorities explain it in all kinds of formal formulations—again, study hall—why he is exempt: because confession not only doesn’t obligate, it exempts. Not only doesn’t it obligate. They explain why. Why does confession exempt? At most, “a person cannot make himself wicked,” or something like that. Confession isn’t enough to obligate—but where do we find that confession exempts from punishment? Why does it exempt? You know he stole—give him the fine. He admits he stole, so what if he confessed? A litigant’s confession is like a hundred witnesses. You accepted it as if there are witnesses. He stole, let him pay the fine, let him pay double. What’s the answer? Yes, so in a moment we’ll see. But in practice we rule that if one confesses to a fine and afterward witnesses come, he is exempt. So I say again: the formulations of the later authorities are either that confession exempts and not merely fails to obligate; others say that if he confessed, it is as though he paid the fine. There is the Seridei Eish who wants to argue that if he confessed, it’s as if he paid the fine. Although I’m more inclined toward the first formulation, because in the first formulation it really seems called for. And this is what I once told about how I led some seminar of Rabbi Kober with various jurists—lawyers and judges—some sort of weekend program he runs. He does marathon workshops over the course of the weekend, and I led one of those workshops. When we learned this passage, there was some judge there, and it was clear he didn’t really know how to learn. So he said, “Well, they forgive him.” Meaning, he confessed, he confessed, so they forgive him, and therefore even if witnesses came later he is exempt. At first I sort of chuckled to myself at this householder answer, and then I said to myself—wait, actually that’s a wonderful answer. A really beautiful answer. Meaning, it’s a terrific explanation, and it also explains very well why if witnesses come afterward he is still exempt, because the confession, as the later authorities say, exempts—it’s not just that it doesn’t obligate. Why really does it exempt? The simplest explanation in the world: if he comes and confesses on his own initiative, then he repented. If he repented, then he is exempt from the punishment.

[Speaker F] I have another answer, because if he knows witnesses are coming—no, wait, what do you want to say? You want to say the opposite case, right? There are two punishments here. The Talmud brings this, I know it, but there are two punishments here. One punishment is the fine, and one punishment is—a robber doesn’t have double payment, because he says it to himself; he doesn’t need the witnesses.

[Speaker B] He says—people see him, fine, that doesn’t matter—

[Speaker F] he says, “I’m taking it,” it doesn’t matter to me what you say. And with a thief we want to encourage them to confess. Meaning, the fine—if he confessed, then overall we just want to return the money to the person to whom it belonged, exactly like with a robber.

[Rabbi Michael Abraham] But that doesn’t encourage him to confess.

[Speaker F] Of course it does. The fact is, when he knows witnesses are going to come, he says, “Listen, it’s a shame for me, it’s worthwhile for me to confess now.”

[Rabbi Michael Abraham] No, when he knows they’re going to come, then in fact he is not exempt.

[Speaker F] Of course he wouldn’t be exempt, because we know we want to educate him, because otherwise every thief would say, “Only if I know witnesses are coming, then I’ll confess.” But that’s exactly the point: if he doesn’t know they’re coming, then why exempt him? After all, he won’t come confessing; it won’t encourage him to confess.

[Rabbi Michael Abraham] What do you mean, encourage him? Otherwise he won’t get caught anyway. Of course he’ll get caught. It’s like all these financial penalties—right now, no punishment, just return it, so people do return it. But if everyone who returns it also gets punished, then nobody will return it. No, obviously, what does that have to do with it?

[Speaker F] If he wanted to confess either way—

[Rabbi Michael Abraham] Yes—

[Speaker F] Either way, you’re saying—

[Rabbi Michael Abraham] You allow him to confess, but—

[Speaker F] That in itself won’t encourage—

[Rabbi Michael Abraham] Him to confess, because anyway—

[Speaker F] He won’t get caught if there are no witnesses. No, the Talmud says the opposite. The Talmud says that if he comes because he fears the punishment, in order to escape the punishment, then he is not exempt. The Talmud says that if he heard that witnesses were on their way and he ran to confess, then he is not exempt. I know, I agree—I’m only saying, so why isn’t that considered encouragement to confess? It’s not encouragement. What do you want—that there should be no thieves? Right, that’s what the Talmud wants. The Talmud wants there not to be thieves. No, no, no—the Talmud wants them to confess, meaning—not to confess—you want to reduce the whole phenomenon, to have fewer thieves. Okay, so in the case of a robber, where it’s apparently the same problem—

[Rabbi Michael Abraham] There—

[Speaker F] There is no double-payment penalty. A robber doesn’t have the double penalty, unlike a thief, who does. Right, because thieves are—I’m saying, with thieves, if you impose double payment, take into account that your punishment will be more severe. So you say: I want to reduce the phenomenon, so I impose a harsher punishment.

[Rabbi Michael Abraham] Okay, then why do you waive it if he confessed? Give the harsher punishment in order to deter potential thieves.

[Speaker F] Why, if the person confessed, did he suddenly become a robber? Meaning, if he came without witnesses—then—

[Rabbi Michael Abraham] If so, then this is a special rule about a thief. So what happens with other offenses where someone confessed regarding a fine? Damages. Someone who caused damage and confessed to a penalty payment, yes, like an ox that gored. Why is he exempt? Did he also become a robber when he confessed? It’s a special rule about a thief—but the rule is a general rule for all fines, not only thief versus robber. In all fines, you are exempt when you confess. Fine, I just want to complete the line of thought. The claim is basically that when someone confesses to a fine and afterward witnesses come, the reason he is exempt is repentance. And the Talmud says that if he heard witnesses were feeling their way toward coming and he ran to confess, then he is not exempt. Why? Because when there is repentance, you are exempt from punishment. And if you confess at the moment you hear that witnesses are about to arrive, then you are not a genuine penitent, so that doesn’t exempt you. It’s simple—the simplest explanation there is. Now, if that’s so, then there is room to wonder what happens with someone who confesses to an offense punishable by death or lashes, not a fine.

[Speaker B] Someone comes and admits that he ate pork—

[Rabbi Michael Abraham] Yes, an offense punishable by death or lashes. What do you say? I already argued long ago in some note in one of the posts—I argued there, about the state’s witness, that post about the state’s witness—in a note there I wrote that logically it seems to me he should also be exempt. The same reasoning as “one who confesses to a fine is exempt.” If confession or repentance exempts from punishment, then repentance should exempt from punishments in general, not only from a fine. What about death and lashes?

[Speaker B] Wait, wait, I’ll explain. One who confesses to a fine is exempt.

[Rabbi Michael Abraham] I’ll say—

[Speaker B] I—

[Rabbi Michael Abraham] I’ll say—it’s also written explicitly. The Talmud in tractate Makkot 5a—Rashi writes, Rashi and the Rosh write something very strange, and Tosafot is very astonished by them. I don’t think I brought it here. Rashi there and the Rosh write that if a person confesses to a liability of death or lashes, he is exempt. That’s how they explain the Talmud; that’s the straightforward meaning of the Talmud there, Makkot 5a. Tosafot—there are two Tosafot passages on the page—the upper Tosafot challenges Rashi. It says, what do you mean, how can you say such a thing? We already brought the proof earlier from Makkot 13. This is from Makkot 5; Makkot 13 is the source for the idea that repentance does not exempt from punishments imposed by a religious court. And Rashi and the Rosh say that it does, and there are other medieval authorities (Rishonim) there too—I bring here the Tosafot there, which implies that way—but Tosafot says, no, we haven’t found such a thing. But Rashi says yes. And I think this is an extension of the principle that one who confesses to a fine is exempt. One who confesses to a fine is exempt because he is a penitent, and therefore he is exempt from the monetary punishment. And Rashi says that confession exempts you also from lashes and the death penalty. Why? How does that fit? After all, Rashi himself, as we saw on page 13, says that confession does not exempt from punishments of the religious court, eight pages later. So what is going on? My claim is that this is the essential repentance and that is the lesser repentance. In the lesser repentance, repentance really does not exempt from punishment, and that is what is written on page 13. On page 5, what Rashi says is essential repentance. The repentance of Rabbi Elazar ben Dordaya, the repentance of one who betroths a woman on condition that “I am completely righteous,” where even in the course of a mere thought he can become completely righteous, without all the stages of repentance. Why? Because essential repentance turns you into a different person. The moment you are someone else, people don’t play these formalistic games with you—yes, you fulfilled your obligation, no, you didn’t; yes, you did the required stages, no, you didn’t. If you were transformed, you were transformed; you are someone else. Who is going to execute a person who is a true penitent? I’ll remind you what I said about Maimonides. We started with Maimonides, after all—that the intermediate people are left hanging during the Ten Days of Repentance. If they repent, good; if not, they are sealed for death. So they ask there: why is only repentance effective? Let him do more commandments, which will tip the scale in favor of merit—why is only repentance effective? So I brought two explanations there. One of them was that repentance removes the sins from the scale that already existed on Rosh Hashanah, whereas the commandments he does now are for the coming year, the balance of the coming year. And Rabbi Chaim Friedlander’s answer—Rabbi Chaim Friedlander’s explanation—is that repentance changes the person. Once repentance changes the person, then he is someone else. It’s not a question of how many commandments and how many sins he has. He is someone else. What is there to judge in the person he used to be, if now he is already a different person? And I already said that this is according to strict law. Repentance is accepted according to strict law; it’s not some special kindness, not beyond the letter of the law. The Maharal, whom I didn’t have time to read here, says: why does a religious court not exempt from punishment when a person repents? Because a religious court judges according to strict law. And to forgive a person by virtue of the fact that he repented—that is beyond the letter of the law; that is for the Holy One, blessed be He, not for a court. Now I am claiming, after all, that essential repentance—someone who has done that—according to strict law, he deserves it. That’s the whole line of reasoning we developed in the previous lectures. If so, then here too, in an earthly religious court, it should work. And that is Rashi on page 5; therefore he says that repentance exempts from punishments of the religious court. And what is the idea behind it? I go back again to the difference between the study hall and the judge. When you are standing before a person whom you know is already a different person, you will not execute him, and you also won’t flog him. In the study hall you can say whatever you want, but you won’t actually do it. We are talking about a person who is completely different, one of the righteous pillars of the community, who has become completely righteous, a true penitent, does only good deeds, and has distanced himself from sin as much as possible. So now you’re going to flog him because some time ago—who knows how long ago—he did something? It won’t happen. Practically speaking, it just won’t happen, in my opinion. They’ll find some device, some way not to flog him or not to execute him or something like that.

[Speaker B] And what I’m claiming is that it’s not a device.

[Rabbi Michael Abraham] What I’m claiming is that it’s not a device, but rather that this is the Jewish law. In civil court it might happen. What? In civil court maybe, in civil court maybe it would happen. It could be that repentance plays a different role there. But in Jewish law it won’t happen. In a place where there is some social need—I brought that case—then it may be that they would punish, because there is a need. But in principle, absent the social considerations, the person would be exempt. Meaning, from my perspective this completes the same picture I was describing: great repentance does not operate with the halakhic rules of what is indispensable and what is not indispensable, what repentance can do and cannot do, whether you did this thing or didn’t do that thing. If you were transformed, then you were transformed. Meaning, it’s not a question of whether you technically fulfilled your obligation or not. So in this context too, of a religious court, I think it’s the same thing. Fine, let it end.