Teshuva: Its Meaning and Laws – Rabbi Michael Avraham – Lesson 5

Table of Contents

• The Talmudic source: Makkot and the distinction between karet and death by the religious court
• Rashi and Nachmanides: repentance as the solution to “two punishments” in karet but not in death
• The controversy over renewing ordination in Safed: flogging the conversos in order to exempt them from karet
• The Chida’s approach in Ein Zokher: a technical problem of knowing whether the repentance is genuine
• The religious court does determine repentance in other contexts: fitness for testimony, “one who acts as your fellow,” and the wayward city
• Critique of pilpul versus practical halakhic ruling: “study hall” versus “judge” and plain common sense
• The Noda B’Yehuda (Orach Chayim, siman 35): a scriptural decree so that Torah punishments not be nullified
• A renewed proposal: minor repentance does not exempt, major repentance does exempt even in court
• An indication from the topic of one who admits to a fine: admission as creating exemption by virtue of repentance
• Rashi in Makkot 5 versus Makkot 13: admission and repentance as exemption from lashes and death
• Conclusion

Summary

General Overview

The speaker wants to conclude a series on repentance by examining the question whether repentance is effective in a lower religious court, as against the accepted view that repentance exempts only in the heavenly court and not from judicial punishments. He presents the main source in tractate Makkot and the explanations of Rashi and Nachmanides, who distinguish between those liable to karet, from whom repentance can remove the heavenly punishment so that lashes are not considered two punishments, and those liable to death by the religious court, from whom repentance does not exempt, so that combining lashes with death is two punishments. He then discusses the principled difficulties in the Chida’s explanation, which treats the matter as a “technical” problem of the court’s inability to know whether repentance is genuine; he presents the Noda B’Yehuda’s explanation as depending on a scriptural decree and the need for deterrence; and he proposes an alternative position according to which the rule that “repentance does not help in court” was said about “small” and technical repentance, whereas “great” and substantive repentance can exempt even from judicial punishments, with indications from the topic of one who admits to a fine and from Rashi’s comments in Makkot 5.

The Talmudic source: Makkot and the distinction between karet and death by the religious court

The Mishnah at the beginning of the third chapter of Makkot lists those who receive lashes, and the Talmud notes that it lists those liable to karet, not those liable to death by the religious court. The Talmud attributes the Mishnah to Rabbi Akiva and brings a baraita in which Rabbi Yishmael includes both those liable to karet and those liable to death among those subject to forty lashes, whereas Rabbi Akiva includes only those liable to karet, because if they repent, the heavenly court forgives them; but those liable to death are not included in lashes, because if they repent, the lower religious court does not forgive them. The Talmud explains that double punishment is forbidden משום “two punishments,” and in the case of karet there are not two punishments here because repentance can remove the karet and leave only the lashes, whereas in the case of death by the religious court repentance does not remove the death, and therefore lashes and death together are two punishments.

Rashi and Nachmanides: repentance as the solution to “two punishments” in karet but not in death

Rashi explains that those liable to karet who receive lashes are not considered to have been judged with two punishments, because they can exempt themselves from karet through repentance in the heavenly court. Rashi writes that in cases liable to death there are two punishments here, lashes and death, and one who is lashed will ultimately be executed, because even if he repents, the lower religious court does not forgive him the death sentence. The speaker notes that the plain sense of the Talmud elsewhere implies that lashes exempt from karet, and he points out that there are fine points and disputes here, but the basic distinction remains a foundation for the view that repentance does not exempt from judicial punishments.

The controversy over renewing ordination in Safed: flogging the conversos in order to exempt them from karet

The speaker mentions the semikhah pamphlet of the Maharshalbach as a central source for describing the controversy in Safed over renewing ordination. He explains that a basic motivation for renewing ordination was the possibility of flogging conversos from Spain who had committed transgressions, in order to exempt them from the karet they would otherwise incur for idolatry and the like. He describes that the relevant lashes are lashes administered by an ordained religious court, and that questions arise there such as “the Merciful One exempts one under duress” as against the claim that in idolatry “there is no duress,” as well as problems of witnesses and warning, and who can testify when many were themselves under duress.

The Chida’s approach in Ein Zokher: a technical problem of knowing whether the repentance is genuine

The Chida in Ein Zokher wonders how it can be that repentance erases sins and a person becomes “clean and pure,” and nevertheless does not exempt from punishments of the religious court. The Chida suggests that this is a technical problem: only the Holy One, blessed be He, knows whether the repentance is genuine, and the court cannot penetrate a person’s inner mind, so it cannot exempt on the basis of repentance. The speaker objects that this explanation is puzzling, because in capital cases we save a person even on the basis of remote concerns, such as the possibility that the murdered person had been mortally defective anyway; and if so, it is hard to say that a court would execute a person when there is a substantial doubt whether his repentance is genuine. The speaker also notes an attempt to answer that the doubt here is a “claim of exemption,” and therefore the burden of proof is on him; but he argues that in practice no judge would execute a person when he himself is in doubt whether the person has already been exempted from punishment.

The religious court does determine repentance in other contexts: fitness for testimony, “one who acts as your fellow,” and the wayward city

The Shulchan Arukh in Choshen Mishpat, siman 34, rules that a thief and a robber are disqualified from testimony “until they repent,” and the speaker stresses that the court in practice determines whether they have repented in order to restore their fitness. The Talmud in Yevamot 22a answers a difficulty based on “he does not act as your fellow” by saying that the father repented, and Tosafot there comments that with lashes or excommunication repentance does not exempt; the speaker uses this to show that repentance is indeed determined by the court for certain matters even if it does not exempt from punishment. Maimonides in the Laws of Idolatry, chapter 4, halakhah 6, describes how the Great Court sends Torah scholars to warn the wayward city “and bring them back,” and if “they return and repent, all the better.” The Raavad objects: “It is indeed good that repentance should help them, but I have not found that repentance helps after warning and action.” The Migdal Oz is astonished at the Raavad’s objection and brings sources on the greatness of repentance, and the speaker concludes that from here again it emerges that the court is capable of deciding that repentance has taken place and of giving that decision halakhic consequence.

Critique of pilpul versus practical halakhic ruling: “study hall” versus “judge” and plain common sense

The speaker distinguishes between analytical distinctions that formally resolve doubts and the reality of a judge who cannot rule to execute when he is faced with a real doubt. He gives a conceptual example from the scriptural decree that relatives are disqualified from testimony, and asks what would happen if two brothers refuted witnesses who had testified about a murder; and he argues that although formally their testimony cannot be accepted, it is impossible to execute a person when in practice there is strong conviction, or at least major doubt, that he is not a murderer. He describes a personal process in which he stopped belittling “practical halakhah” and supposedly “common-householder” considerations, and he presents a principle according to which an enactment or decree that did not spread among most of the public is an indication that it is not correct, and not merely “giving in to weakness.” He adds criticism of leadership that is in the hands of yeshiva heads who do not receive the feedback of “what you’re saying just doesn’t make sense,” and he presents the combination of study-hall analysis with the criticism of life experience and plain common sense as a necessary balance.

The Noda B’Yehuda (Orach Chayim, siman 35): a scriptural decree so that Torah punishments not be nullified

The Noda B’Yehuda writes that “without question repentance atones with full atonement,” and he cites the verse, “When a wicked man turns back from his wickedness… none of his sins… shall be remembered against him”; and nevertheless he rules that in the time of the Sanhedrin, even if many years had passed and the sinner had repented and undergone mortifications “more and more than the balanced repentance mentioned in the Rokeach,” the court would still burn or stone him according to the punishment of the sin. He asks how this can be reconciled with “Do not kill the innocent and the righteous,” and he answers that this is a “scriptural decree,” because “otherwise the punishments of the Torah as a whole would be nullified,” since every person would say, “I have sinned and now I repent,” and would not be executed; and since the Holy One, blessed be He, wanted punishment so that “a person should fear to transgress,” repentance must not help to save him from death by the religious court. The speaker objects that if the whole concern is deterrence, they could have punished extra-legally or found other ways of managing things; and he mentions the story of Shimon ben Shetach and the idea that “the hour requires it” as an exceptional mechanism, not a standard one.

A renewed proposal: minor repentance does not exempt, major repentance does exempt even in court

The speaker argues, following the line developed in the series, that a technical repentance consisting of the four stages does not exempt from judicial punishments, but a substantive repentance in which the person has “turned over,” a “great repentance,” can exempt even from punishments of the religious court, because the person has become “someone else,” and you can no longer punish him as the one he was. He restates the Noda B’Yehuda’s difficulty and argues that if the court is capable of examining genuine repentance, as it does regarding fitness for testimony, there is no concern that everyone will simply say “I repented” and be let off, because the court will have to be convinced that this is a true penitent. He explains that the accepted rule, “repentance does not help in court,” refers to small repentance, whereas in the case of great repentance, both halakhic logic and practical judgment would lead to exemption.

An indication from the topic of one who admits to a fine: admission as creating exemption by virtue of repentance

The speaker brings the rule that “one who admits to a fine is exempt” and presents the dispute between Rav and Shmuel about one who admits to a fine and only afterward witnesses come, along with the halakhic ruling that he is exempt. He wonders how admission not only fails to obligate but actually exempts, and he offers a “plain, non-academic” explanation that seems right to him: the admission is viewed as something like forgiveness because it expresses repentance. He connects this to the law of “fear of witnesses,” according to which if he confessed out of fear because witnesses were “just about to arrive and testify,” that is not an admission that exempts, because there is no real repentance here, only a tactic to save himself.

Rashi in Makkot 5 versus Makkot 13: admission and repentance as exemption from lashes and death

The speaker notes that Rashi and the Rakh in Makkot 5 explain that if a person admits liability to death or lashes, he is exempt, and Tosafot is puzzled by this and brings proof from Makkot 13 that repentance does not exempt from punishments of the religious court. He proposes to resolve this by means of his own distinction: in Makkot 13 the issue is small repentance, which does not exempt, whereas in Makkot 5 it is substantive repentance that replaces the person, and therefore exempts. He explains that this model continues the earlier conception of repentance as something that changes the person “as a matter of law,” and it leaves open the possibility that a religious court would not lash or execute a person who truly became a completely righteous person, unless “the hour requires it” for unusual social reasons.

Conclusion

The speaker concludes with the blessing, “May you have a good final sealing,” and says that the next meeting will be after Sukkot, “the week after that.”

Okay, what I want to do today is finish our series on repentance with one more implication, which Yossi is supposed to be somewhat familiar with, at least the first part, from an article I wrote for the book your younger one published. The first part, anyway. Since then there have been some more new ideas, and I still need to write it up at some point, because it’s getting long.

Basically, what I want to discuss is the question whether repentance helps in an earthly religious court. I also talked about this a bit on the website. The accepted view is that it does not—that repentance does not help in an earthly religious court. If a person incurred lashes or death or any other punishment, then even if he repented he is still punished; in other words, he is not exempted just because he repented.

The main source usually brought for 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, with his father’s sister,” and so on. In short, there’s a list here of all those who receive lashes. Then the Talmud says: it teaches those liable to karet, but it does not teach those liable to death by the court. Meaning, why does it bring those liable to karet who receive lashes, but not those liable to execution? Those liable to execution should also receive lashes. But how exactly would that work? If they die, then why lashes? With karet, the rule is that if they receive lashes they are exempted from karet. There I can understand why those liable to karet receive lashes. But those liable to execution—would they get lashes? Would they get lashes and be exempt from death? That’s a bit strange.

The Talmud discusses this; it’s less important for my purposes. But then the Talmud says: whose view is our Mishnah? It is Rabbi Akiva’s. As it was taught: both those liable to karet and those liable to death by the court are included in the category of “forty lashes,” according to Rabbi Yishmael. Rabbi Akiva says: those liable to karet are included in “forty lashes,” for if they repent, the heavenly court forgives them; those liable to death by the court are not included in “forty lashes,” for if they repent, the earthly court does not forgive them.

So the Talmud says that the difference between lashes and death, between karet and death, is that in the case of those liable to karet, even if we give them lashes that is not considered two wickednesses. The rule is that we do not obligate a person for one act with two punishments. So with karet, where we obligate him in both karet and lashes, that is not two punishments. Why not? Because if the person repents, he will be exempt from karet, and then all that remains is the lashes. Karet is basically a punishment given only to someone who does not repent. So then he deserves lashes or something like that. But if he repents, he would have deserved karet, yet because he repented he is exempt from karet, and so in the end he is liable only to lashes, and that is not two punishments. By contrast, someone liable to death—karet is a punishment at the hands of Heaven, but someone liable to death by the court, repentance will not help him. Even if he repents, he is not exempt from death. Therefore the combination of lashes and death is considered two punishments. That’s what the Talmud says.

I’ll say again: there is a lot to discuss in that passage, but for us what matters is just the distinction itself. Rashi there writes on Rabbi Akiva’s statement about those liable to karet, and says as follows: if they were warned for lashes, they are included in lashes and are flogged, and there is no issue here of “two punishments,” since his punishment is lashes together with karet. And why are these not two punishments? Because he can exempt himself from the punishment of karet by repentance before the heavenly court. But those liable to death are not included in lashes, because here there are two calamities—lashes and death—and one who is flogged will in the end be executed, for even if he repents, the earthly court does not forgive him the death penalty.

In other words, one can see from this Rashi that he understood the discussion as asking: why not flog him and let him be exempt from death? So he says: even if you flog him, even if he repents, he will still remain liable to death. And if even after repentance he is still liable to death, then you’ll execute him afterward—so what comes out? That he was punished twice for the same offense. With karet, if you flog him and he repents, he will not receive the karet, because the heavenly court forgives him, and then it comes out that he got the lashes and only one punishment—that’s it. At least if he repented. If he didn’t repent, then he’ll get the karet too. That itself is also a question, because on the plain reading the Talmud says that those liable to karet who were flogged were exempt from their karet. So it sounds like the lashes themselves exempt from karet, even without repentance, apparently. But here you see that this is a tannaitic dispute. In any case, the distinction itself is definitely written here.

I think I mentioned once already—just as a side hint in parentheses, because I don’t want to get too deep into it—the controversy that broke out in Safed around the renewal of ordination. Maharalbach has, in the last responsum in his collection, what’s called Kuntras HaSemikha, “the treatise on ordination.” And from there we basically learn everything we know about what happened there, including the views of those who wanted to renew ordination; and he stood at the head of those who opposed it, though he presents both sides.

It turns out 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 sins, and they wanted to flog them in order to exempt them from the karet they would otherwise deserve for idolatry and things like that. So that was really why they wanted to renew ordination, because an ordinary court—if it just flogs them—that does not count as court-imposed lashes. It has to be a properly ordained court with authority to flog, and only an authorized ordained court whose lashes can exempt an offender from karet.

What are “coerced converts”? “The Merciful One exempts one who acted under coercion”—he should be entirely exempt. No, the coerced people of Spain, yes. The claim is that with idolatry there is no such thing—you are obligated to give up your life, so coercion doesn’t help. But there are witnesses and warning—how could they incriminate themselves? All of this is discussed there. Meaning, the question is: fine, the court will flog them, but then what? Fine, so the question is whether they incriminate themselves; apparently “a person cannot make himself wicked,” so let witnesses come and testify that he worshipped idols. And who exactly would those witnesses be? People who themselves did not worship idols? Who exactly? There are lots of legal intricacies there, but that was the basic motivation: to flog them in order to exempt them from karet, to atone for them, basically.

For those liable to death, flogging won’t help, because even if they repent they will not be exempt from death. And then it comes out that you’ve assigned two calamities or two punishments for one act, and the rule is that you punish for one punishment, not two. Nachmanides too, in Milhamot there, writes the same thing. In any case, that is what emerges from the plain meaning of the Talmud, and this is considered the foundational source for the whole widely shared view that repentance does not help exempt one from punishments imposed by the court. Repentance helps exempt one before the heavenly court, but not before the earthly court.

Now, several later authorities discuss why exactly this is so. I’ll bring maybe three. There is Chida’s view in his book Ein Zokher, and there he asks a question. He wonders how this can be, since we know that repentance basically erases sins, and Maimonides writes: “I am not the same person I was,” and “see how yesterday he was distant, and today he is close and clean and pure.” He tries to encourage us and tells us that after repentance we are clean as we once were. Fine. So if we are as clean as we once were, then why does repentance not help regarding punishments of the court?

When would he even have time to do that? What do you mean? Repentance? What do you mean? Just that he thinks he’s repenting? I understood that repentance means you need to stand in the same situation in which you committed the sin and withstand it. No, that’s not a rule. Maimonides brings it as an indication, but it’s not a rule, and it doesn’t have to be so; without that it can still be that you’ve repented. But even suppose it were so—fine, let’s say someone happened to be in exactly the same situation and was a penitent and it was totally clear he would not fail, for the sake of the hypothetical. Okay, now they bring him to court for the sin he committed; after all, a year, two years, three years have passed—whatever—he was caught, there are witnesses, they brought him to court. He repented, there are witnesses that he repented, he was even in the same situation, everything is in place. He is still not exempt from the punishments of the court. The question is why. If repentance really works, he should have been exempt from the court’s punishments. How can you execute him? “Do not kill the innocent and righteous.”

It cannot get to the depth of his mind. What? It cannot reach the depth of his mind and… Ah, so Chida in Ein Zokher indeed writes that there is a technical problem here. Only the Holy One can know. Exactly. Chida’s basic assumption is that repentance really should have helped even in the earthly court. That is his starting assumption. The only problem is technical: how can you know whether he genuinely repented or didn’t genuinely repent? In a person’s inner life there is uncertainty. So would you kill him on the basis of uncertainty?

But the big problem is that this explanation is very puzzling. It’s puzzling from several angles, at least two. One of them is what Shmuel said. Fine, maybe you can’t be certain, but you have a doubt whether he repented or not. So you have a doubt—do you kill a person when in doubt? After all, we save a person if… I mean, in the very place where you stabbed with the sword, who knows, maybe there happened to be a perforation in his lung and the person was actually a treifah, mortally compromised. Meaning, in that very spot where you stabbed, maybe there was exactly a perforation in the lung, so the person was already going to die. He was a treifah. One who kills a treifah is not liable to death by human hands, only by Heaven. So that concern is enough to save a person from the death penalty. So here too: a person who did complete repentance—God knows for sure, but you’re a human being; who knows, maybe he’s a hypocrite, maybe inwardly there’s nothing there. So you can’t know. Because the concern is very remote, they did not accept that rationale. I’m bringing this just to illustrate how far these things go, but clearly where you have a doubt of fifty percent or ten percent you do not kill a person. There is no doubt about that.

But there is a difference: the doubt on which you don’t kill a person is a doubt about the act itself for which he is being judged. Here this is his defense claim, a claim that says: I now want not to receive the punishment. So I did see someone who wanted to argue exactly that—that the kind of doubt that exempts, when we exempt from punishment due to doubt, is when it is unclear that he is liable to the punishment at all. But here it is clear that he is liable; the whole question is whether he became exempt. So this is a claim of exemption, and when there is doubt in a claim of exemption, the burden of proof is on him. Still, I say that if the court has a doubt whether the person is ultimately exempt from punishment or not, clearly it would not kill him. That just cannot be. It can’t be just because technically the burden of proof is on him. There are at least two levels here.

Because in that dispute of Rabbi Tarfon and Rabbi Yohanan—Rabbi Akiva and Rabbi Yohanan—it’s about the whole management of the system. If we look at the court as pure truth—I’m talking about the Sanhedrin, which represents pure truth—then if we have a doubt whether he repented or not, then say that on the level of repentance between him and God I do accept his repentance. But for purposes of running the system, I’ll arrange some other punishment for him. It’s like putting them into the cell and all the other punishments where there’s uncertainty regarding halakhic truth. But regarding reality, it could be that they truly accept the repentance, yet we’ll kill him anyway—not because we didn’t accept his repentance; his repentance we really do accept.

So then not to kill a person who is innocent? No, I’m talking, okay, let him receive lashes. Fine? Because if you give him lashes, then the punishment you give him is not the punishment of the Sanhedrin. They didn’t execute often; Rabbi Yohanan didn’t answer them in the Sanhedrin—maybe he agrees with them. Rabban Gamliel, sorry, when he answered them, he answered them about “you would increase murderers.” “You would increase bloodshedders in Israel.” Right, so what do I care, let them increase. The whole problem is running the system. Suppose I had another way to run the system so that murderers wouldn’t increase—would you then execute him? In my opinion he agrees with them on the argument. He himself, Rabban Gamliel, would exempt him from punishment too. “No person would ever be executed.”

Even more—a harder question then. Why? Because Rabban Gamliel also agrees with them to exempt? Yes, but when he answered them he said: “You would increase murderers.” You’re offering another explanation. You’re saying that if we exempt every person through repentance then the system can’t be run properly. Hold on, we’ll get to that in a moment—that’s what some say, the Noda B’Yehuda, in just a moment.

Yes, but that still doesn’t solve the question: why are you killing him? For deterrence you kill someone who might not be a murderer? Not that he isn’t a murderer—he may be acquitted because he repented. He doesn’t deserve the punishment. He doesn’t deserve it; he repented, so he doesn’t deserve it. Fine, that’s the whole idea. He did commit the offense. Good, I’ll get to that in a second. He’s another person—that’s the whole concept.

Now let’s look at the deterrence conception of punishment. On that conception, all punishment works this way. In terms of the person himself, I’m not really supposed to punish him. The only reason I punish him is to achieve an external deterrent effect for society. If that’s so, then whether the person himself deserves it or not—again, if he deserves no punishment at all, I won’t just seize some innocent victim. But this person committed the offense intentionally, with witnesses and warning and everything. Now I need deterrence. On that model, it doesn’t matter that he’s now “innocent.” That’s the deterrence conception. You can object to the very conception of punishment as deterrence—which is what Itzik basically said earlier, because maybe punishment itself isn’t really the best thing, maybe you can deter by using the cell. But punishment as deterrence—you only give deterrent punishment to someone who deserves punishment. What? You don’t just give punishment as deterrence. No—but here you won’t be giving this punishment to anyone, because everyone will say they repented. And at the very least you’ll have doubt whether they repented or not, so you won’t punish them. So what deterrence will there be? Anyone can say: I’ll murder, and afterward I’ll say I repented, and because of doubt I won’t be punished. Fine, in a moment we’ll get there.

So the first difficulty with Chida’s approach is the issue of doubt. How can you kill a person? At the very least, because of doubt you should exempt him. The second difficulty, which in my view is even stronger, is that courts do in fact decide whether a person repented or not. In many places. I’ll give just examples.

The Shulchan Arukh says: a thief, and likewise a robber, are invalid as witnesses from the time he stole or robbed, even if he returned what he stole, until they repent. Only once they repent do they return to validity. This is in Hoshen Mishpat 34. Now who decides whether they repented? The court, obviously. The court disqualified them; if they repented, the court says: okay, they repented, they return to validity.

But that’s already a different framework. It’s not punishment for the act; rather, because of the act you lose your right to be such-and-such—to be a witness or something like that. No, but they are judging whether he repented or not. Yes, but you can’t get into the depths of his mind. Obviously—but I’m saying there are criteria. Only there it’s on another level, so they don’t know what exactly counts as having repented. It doesn’t matter; those criteria are indications, not objective criteria. They are indications that this is a genuine penitent. And here too, suppose he reached the point where he qualifies there as a genuine penitent. Of course, why not? No, but let’s say he had no witness-validity because he wasn’t engaged in building up society, and now he is. Fine. A penitent—what’s the problem?

Building up society is not the invalidity of “wicked.” That’s a different invalidity. One who does not engage in building up society is invalid as a witness because he’s idle; there’s no reason to take what he says seriously. But a wicked person—a thief, a robber, someone who eats pork, someone who committed an offense punishable by lashes or death—that is called wicked. “And if the wicked man deserves to be beaten,” or a wicked extortioner, meaning someone who committed a monetary offense. Fine? He is invalid because he is wicked. Now the question is how do I return to validity? The court determines that I repented. A court can determine that a person repented for purposes of restoring his validity. So if for purposes of restoring his validity—which after all isn’t the end of the world; let him stay invalid—what the court determines is good enough, then regarding killing him, I join this to the previous difficulty: at least treat it as some kind of doubt. I join it to the previous difficulty. How can you say that the court cannot get into a person’s mind? I don’t know, that seems very difficult to me.

In that same section 34 there are many examples of this. 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 one is liable for striking him or cursing him. Meaning, if he strikes or curses his father and mother, he is liable even though he is a mamzer. He is a son, yes—a mamzer son of his father. So the Talmud asks there: after all, the father is not one who “acts as your people.” How can he have a mamzer son? Because he had relations with one of the forbidden women, a married woman or something like that. And one is not liable for striking someone who does not act as your people. Fine? So they answer there that the father repented. From the moment he repented, then you are liable for striking him. And Tosafot there writes that if the father is liable to lashes or excommunication, he is not exempt from that by repenting. Tosafot comments why here repentance helps, and makes various distinctions.

Again, on the one hand repentance does not help regarding punishments of the court; on the other hand, that is only for punishments of the court. But there are things for which the court can determine that the person repented. So you see that it is not some fundamental inability of the court to determine whether a person repented or not. Rather, there is something specific about punishments of the court where repentance does not help.

Maimonides also brings this as law, by the way: if they repented, he is still liable and is executed because of them, even though they are going out to execution. Meaning, he won’t be exempt from the punishment, but if they repented, then someone whose son cursed or struck him is liable—liable to punishment. So from that very law you see both things at once: repentance does not exempt him from death, but the court can still determine that the person repented for other purposes.

With an apostate city too there are some interesting discussions. There is a law there that appears explicitly. Maimonides writes in chapter 4, law 6, of the laws of idolatry: What is the law of an apostate city? When it is fit to become an apostate city, the Great Court sends and investigates and examines until they know by clear proof that the whole city or most of it was led astray to idolatry and returned to the worship of stars. Afterward they send 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 for battle, and they besiege them and wage war against them until the city is breached.

So if they repented, they are exempt from the law of an apostate city. But if not, then the law of the apostate city is applied to them. About this, Ra’avad comments: “It is a good thing that repentance should help them, but I have not found repentance helping after warning and action.” Meaning: it sounds very reasonable and right to me that repentance should really exempt them from punishment, but we have not found such a thing. If a person is liable to punishment, repentance does not help him escape it. So why here, if these two Torah scholars bring them back, does repentance help exempt them?

And in Migdal Oz, he emends the text there and says: “I wonder why it should not help after anything in the world, for Scripture says, ‘Return, backsliding children,’ and as is stated in Rosh Hashanah and Yoma and in the Jerusalem Talmud of Pe’ah, that repentance is so great that it reaches the throne of glory, and ‘Return, Israel, to the Lord your God’—that it reaches all the way to the Holy One.” So he says: I wonder, why indeed should repentance not help? He agrees that repentance does not help, but he is very puzzled. Why indeed does repentance not help in the laws of the court?

But for our purposes I bring this not only because it joins the difficulties of Chida and Noda B’Yehuda and everyone else; rather, once again, you see here that the court can determine that the inhabitants of the city repented and exempt them from the law of the apostate city. Beyond the question 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; here perhaps there is more of the dimension of deterrence than punishment, and it is collective in any case—but as to the determination itself, that the court can determine whether repentance happened or not, Chida is clearly wrong to say this is not in the court’s hands or that it cannot determine it. That really is strong evidence, because we know that under certain circumstances the court can determine whether repentance happened or not. Therefore Chida’s words seem somewhat difficult to me.

I think one can defend him. It was in Dovev Meisharim—the Tchebiner—who gave the answer that there is a difference regarding doubt: a difference between doubt whether you are liable and doubt whether to exempt you. But that’s a yeshiva-head distinction. Meaning, when you’re sitting in judgment—this is what I wrote on the site—when you sit in judgment and say there’s a fifty percent chance the person repented, are you going to kill him as a judge? In the study hall you make distinctions: on whom is the burden of proof, on the one who repented or didn’t repent.

You could say the same thing in criminal law, for example. They sentenced him, and then there’s a whole process of sentencing. You have to bring evidence for various things to mitigate the punishment—I know, that he served in the army and so on. And suppose there is doubt there and no one can decide. But mitigation of punishment isn’t because extenuating circumstances attach to the offense itself; rather, he gets bonuses for other things. But if you say there is doubt whether he actually reversed the offense itself, cleaned it away—how can you, especially when it’s the death penalty, which is the end of the road in our legal system? It’s hard to accept such a thing, I think. I don’t know.

We talked about this when I spoke about Scriptural decrees. There was once a series on Scriptural decrees, reasons for commandments, and so on. I spoke there about invalidation of relatives as witnesses. I also talked about it in the context of miggo and court procedure. If there are two relatives, we disqualify them from testimony. We can accept that easily because we’re already used to it: a Scriptural decree. Maimonides and the Shulchan Arukh bring it; the source is the Talmud in Bava Batra, that this is a Scriptural decree. In principle, relatives tell the truth. There is no suspicion that their testimony is false, but there is a Scriptural decree not to accept their testimony. So because of that we do not accept it.

Then I asked: what happens if two witnesses come and testify that Reuven murdered Shimon, or desecrated the Sabbath, a capital offense with witnesses and warning, and now two other witnesses come—two relatives, two brothers—and they refute the first pair as conspiring witnesses? If they refute the first pair, then had they been valid witnesses, the second pair would be believed, the first pair would receive the punishment they sought to impose, and the accused would of course go free. But here the Torah decreed not to accept them. So in terms of the question of truth, the truth is that the two witnesses who said he murdered are liars. That is the truth. But the Torah decreed not to accept the second pair. So because of that Scriptural decree, are we going to execute this murderer even though we know factually he is not a murderer?

No, but not for that reason, Rabbi. The description is very vivid the way you put it, very sharp like that. They would accept the testimony of the two brothers and would not execute him, but on the other hand those first two false witnesses also would not be executed. Obviously not. Of course not. I’m talking about the murderer. I know you’re talking about the murderer because that sharpens it more, but in all the other examples too the difference is essential. The difference is between punishing and not punishing—that’s exactly the point. Right. But to accept repentance, to restore someone who was invalid as a witness because he was a robber, and now after three years to accept his testimony because you see that he returned to the right path—that’s not repentance in the sense of “I sinned, I transgressed, I rebelled” after 25 minutes. After three years, after you placed him in excommunication and didn’t accept him, and after three years he repented—then exempt him from death, what’s the problem? Same thing. Maybe yes—maybe they really would exempt him from death if they had doubts, just like… But it says not. It says not, when you don’t know how long it took them to execute him. I don’t know—so let them wait. If they see that he is a genuine penitent, they don’t know? Chida says we don’t know. Okay, then wait. If for three years he is such a penitent and so on, then that’s it—exempt him.

Yes, but again, when I speak, in my opinion, I’m speaking about an offense that has very significant broad ramifications, meaning it dramatically affects society. You can’t wait around for every offender—let’s just wait and see. But if he repented, why not? Because in order to know, the criterion that he repented has a cost on the other side. What cost am I paying for that? Not only deterrence—we said we’ll get to that. Not only deterrence, also in the process itself, to ascertain his repentance. What’s the problem? Ascertain it—why not?

I heard this week some Knesset member speaking about that Knesset member who resigned because he was at his nephew’s wedding, something like that. So Rabbi Amsalem got up—he was the one speaking—and he said something true. He said, listen, today there’s nobody there with broad enough shoulders. If Rabbi Ovadia were there, fine, he would call Mr. Guetta, give him two slaps, say “Not good, Guetta, not a good thing you did,” put him back in the Knesset, and the story would be over. Or maybe not—you didn’t read his post… Whose? No, I certainly read the… I’m saying, the post analyzes the pure truth, not the specific case. If there had been… I’m saying, he said it well and he really hit the point. He would have given him two slaps and said what he did was very bad, put him back in the Knesset, and move on. But now there’s a tangle. Why? Because there’s no one with broad enough shoulders. They know that this phenomenon can’t be stopped; they can’t just accept his repentance—why not? For our purposes… I’m saying, because there aren’t broad enough shoulders, there isn’t a judge with broad enough shoulders. And in the Sanhedrin, I estimate, if two such witnesses came… a sufficiently respected and distinguished Sanhedrin panel, not the Chief Rabbinate’s court… No, I’m not talking about the Chief Rabbinate’s court. Capital cases are the Sanhedrin. So I’m saying, if they came before the Sanhedrin, in my opinion if two such witnesses came… they’d exempt him. I don’t think so. They’d exempt him, but that one still wouldn’t be executed either. They’d arrange something else for him. So that’s what I’m saying. So I… certainly, why is it so? Because it’s not cut and dried the way Rabbi is presenting it here. But even if he… in that same effort when he says, “Friends, I repented”… yes. They also won’t accept that from him so easily. He has to prove it. I didn’t say easily. Who said easily? Why easily? But if they become convinced that he repented… Because the examples Rabbi brought from the Shulchan Arukh are of some robber, whose testimony in any case wouldn’t be accepted, and they place him in excommunication for some time and then we… Not true. If he repents, they accept his testimony. After… but what’s the criterion that he repented? Not that he stood before the court and said, “Friends, I repented, accept me.” Of course not. We’re talking about when they see he genuinely repented. And now here I have someone liable to die. He testifies now that he murdered, someone now contradicts his testimony—obviously he genuinely repented. What? After he returned? No, but more than that… And that robber, more than that, the robber who robbed is liable to lashes. Robbery carries lashes. No, no, there are no lashes. No, he just returns the robbery. What? He pays restitution. Suppose he did… ate pork with witnesses. He is liable to lashes and invalid as a witness. Now what happens if the court decides he repented? He’ll receive lashes and be valid as a witness. Exactly. Let him receive lashes. Yes, he’ll get lashes and become valid as a witness. Let him receive the punishment, what people call it. Right. He paid his debt, and the damage isn’t all that great.

“He paid his debt”—that’s another discussion, by the way. There is a big question in Maimonides and in the Shulchan Arukh: it may be that lashes can restore him to validity even without repentance. That’s a question; it depends when and how, because he paid his debt to society. But that’s a different issue. Maimonides himself writes, however, that if the generation is morally corrupt and he ate pork, then they will put him to death. Fine—that’s just technical, exceptional cases. Courts recognize punishments beyond the strict law. I’m speaking now about the law itself.

So what I want to say is this: I mentioned the Tchebiner, who said there is a difference between whether you come 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 brilliant analytical distinction, which is correct on the analytic plane, still, if there’s a fifty percent chance he is exempt, you don’t kill him. True, the burden of proof is on him. Fine, but if I’m in doubt—and for exemption it is enough that I be in doubt. He need not prove to me that one side of the doubt is true; all that’s needed is that I have doubt in order not to kill him. Just practically: a person standing there—this is the difference between a discussion in the study hall and a person who has to do it. Someone in the study hall has distinctions—everything is brilliant, wonderful, true pilpul. Like legal interpretation versus an actual judge. Exactly. But a person who now has to rule that this defendant be put to death, if he says to himself, “I’m in doubt—fifty percent he repented,” just because I don’t know, therefore kill him? He won’t do such a thing. It simply won’t happen. It won’t happen, and rightly so.

The example I brought for this was conspiring witnesses where two brothers refuted two witnesses in a murder case. I said there that clearly we do not apply “as he conspired” to the refuted witnesses, because those who testified against them and made them liable to death were two brothers, and by the Torah we do not accept their testimony. That is clear. But we also won’t execute the murderer. Why not? After all, we didn’t accept the testimony of the second pair because of a Scriptural decree, so the first pair remain in force and they testified that he murdered. Right—but he didn’t murder. The fact is that he didn’t murder. So the Scriptural decree means I don’t accept the testimony—but you cannot kill someone when factually you have become convinced he did not murder, or at least you have significant doubt that he murdered. You can’t kill him; there is no such thing.

Now, everyone I asked among the analytical scholars around me said: certainly they would execute him. I said: are you out of your minds? Everyone I spoke to. Good material for your lecture on a halakhic state. What? In a halakhic state they would execute him. No, no, no. The opposite. In Jewish law they would not execute him. In a halakhic state they would not execute him. In a halakhic state, when they’d actually have to implement it and not just do hairsplitting from armchairs, they would not do it. Obviously not. Today we can theorize and say these things because no one is doing anything with it anyway. So you can make this distinction and that distinction and everything sounds very sensible and correct. But practical reality is stronger than all these things—and rightly so, by the way. It’s a good thing.

Not weakness? Huh? Not weakness? No, no, heaven forbid. This is one of the things that happened as I got older—some say not, I don’t know. At first I really looked down on practical halakhic ruling, because practical halakhah is kind of messy, not built properly. You see how they make considerations a little this way, a little that way, because it’s reasonable, not reasonable, proportional, not proportional. What difference does that make? There’s analysis, there are distinctions—do the job properly! What are these games, this balebatishness? Is there Rabbi Chaim? Exactly. So at some point I suddenly saw that this was so childish. Those “balebatish” considerations have a huge amount of sense behind them. And those analytical distinctions—granted, they have their place; I’m not disparaging them, I live off them, I identify with them—but they are only an infrastructure. After that, common sense has to come in too.

We talked about this once. I think I brought that example of the penitent I accompanied. That was where the coin dropped for me. He lived in some small Haredi community, and as often happens with small communities, they are more stringent than a city. In a city you can be a little unusual and it’s not terrible—if it’s a very Haredi city like Bnei Brak or large neighborhoods of Jerusalem. But in small communities, small Haredi communities can be more rigid, more stringent. So people came to him with all kinds of craziness. He rode a bicycle; they told him that’s not done, an avrekh doesn’t do that. He went with a student backpack on his back—he was a student—so they said an avrekh doesn’t walk around with things like that; go with a plastic bag in your hand. A health-fund bag. His name was some Israeli-sounding name, so they said, change it to Mordechai Yitzhak, not names like that, not things like that, it’s not appropriate.

So he complained to me, saying he didn’t understand what they wanted from him, what these crazy people were up to. And in the course of the conversation I remember that the coin dropped for me, and afterward I wrote about it more than once: there is something very problematic in the conduct of Haredi society. The Sages tell us that a decree or ordinance that did not spread through most of the public is void. Usually—and here I return to the question of weakness—people usually understand that as some kind of weakness: we have to compromise with reality; what can you do, that’s how it is. Fine, true, 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 void.

I claim that’s wrong. If the decree is void, or did not spread, that is an indication that it is not correct. The scholars who made the decree or ordinance got feedback from the street showing them that they were talking nonsense. “Go out and see.” That’s only regarding decrees and ordinances, not things that aren’t decrees and ordinances. What difference does it make? Anything—anything generated in court or in the study hall, somewhere disconnected from the street, needs feedback from the street. There is something in ordinary common sense. There is contempt for “householder’s sense,” and that contempt has something to it, but on the other hand there is something in ordinary common sense that is very necessary in order to balance the analytical scholarship that can lead you to conclusions where it is obvious to any sensible person… Benny Lau once wrote, I saw, that one of the problems of our generation is that leadership is not in the hands of rabbis but of yeshiva heads. The major political leaders, those who make decisions, are yeshiva heads since Rabbi Shach—the yeshiva head, not the city rabbis. What’s the difference?

Yeshiva heads constantly deal with eighteen-year-olds. They are brilliant, they challenge everything, they don’t let them rest. A yeshiva head—yes, a yeshiva head, not a rabbi—and they test whether it’s consistent, whether the argument is brilliant. You have to be talented to deal with those guys; they are not simple, certainly not in the top yeshivot. But you don’t deal there with someone just saying: what you’re saying simply doesn’t hold water. No one will say that to him. What they’ll say is: there’s a contradiction between what you said here and what you said there, and I have a question from there and from here—and he makes a wonderful distinction and everyone delights because it’s brilliant. But he’s saying nonsense. And that, an adult has to tell him. A rabbi deals with adults, people with education and the ability to think, and life experience. Not eighteen- or twenty-year-old boys testing him on logic. Someone says to him: listen, what you’re saying doesn’t make sense. That’s it. Go home and do your homework. We didn’t find a contradiction in your words and your distinction is wonderful, everything is fine, I’ll even bless over the Torah after hearing it—but it’s not real. You can’t work with these things in practice.

There is something in ordinary common sense, despite all the contempt people in yeshivot or study halls have for it, that is very necessary to balance the attempt—yes, exactly. Experience and theory. Exactly. In engineering too, all the time, yes. Right.

Not riding a bicycle, going with a plastic bag—that’s “ordinary common sense”? Because it doesn’t come from any source; no one derived from any passage that it’s forbidden to ride a bicycle. No, no, I didn’t make a full comparison. I’m bringing another example of what happens. I’m now returning to the bicycle and the bag. The claim is that once some norm develops in the Haredi world, it gets tested against avrekhim and yeshiva students; it does not get tested against the ordinary person on the street. And that’s how all kinds of crazy norms can arise, like carrying a plastic bag instead of a backpack, or changing your name, all kinds of baseless things. But once they get in, people suddenly sense there’s some kind of piety in it. I’m not making a full analogy to the previous issue; I’m illustrating the principle.

In principle, this should have gotten feedback from the people in the fields, meaning the ordinary person would say to you: stop talking nonsense, this is stupid, a normal adult person. Now what happens in Bnei Brak or in Haredi society? If someone says that, then he’s not God-fearing. We don’t pay attention to ordinary householders; they don’t count. We take into account the oylem, not the olam. We listen to the oylem, not the world. “The world” is just regular people; “the oylem” means those who sit in the study hall. And what happens as a result is that decisions crystallize and are made within the study hall, basically among theoreticians—okay, theoreticians who are of course also willing to implement—but ultimately it’s among theoreticians. And they do not get that feedback from the simple person, from common sense, that says something here is not reasonable. Exactly. They built an entire public made up wholly of theoreticians, and whoever is not like that, his opinion doesn’t count.

Now, that’s a mistake, because they see listening to that criticism from the householder, from the outsider, as surrender to weakness. Whereas I think it is exactly the opposite: listening to his criticism is accepting a correction of common sense to the intellectual structures you build in the study hall. And if you lack that, you end up with problematic conclusions. The conclusions themselves are problematic. It’s not that you don’t need to compromise—on the contrary, then you reach what is truly best, what is really ideal. If something doesn’t suit the public, then in principle it is not right to legislate it as binding even in the study hall. Again, any individual can decide that for him this is an extra spiritual level and so he does things beyond the binding standard. There is a place for that. But certainly not to establish something as a binding norm when it simply doesn’t hold water, when common sense rejects it.

So in this context too, these rulings and distinctions can certainly be said in the study hall. But in life, the beauty of practical halakhic ruling is something I discovered very late—how to integrate it with study-hall thinking, not replace it, not say, fine, we throw everything in the trash and now we’ll just think by gut feeling, but rather let common sense critique the analyzing intellect. I don’t remember who told the story of a yeshiva head who sent a halakhic question to the city rabbi and said to him: but don’t write me and don’t bring me the arguments, because I’ll eat them all up. Rabbi Chaim sent it to Rabbi Yitzhak Elchanan. By the way, Rabbi Chaim was a city rabbi. Rabbi Chaim was the rabbi of Brisk. And he behaved like an analyst even though he was a rabbi. So he sent a question to a rabbi and said: no arguments. Fine.

In any case, let me return to our issue. Chida’s claim that the court cannot know what is in a person’s heart is problematic. It’s problematic because at least in matters of doubt, certainly—I say judges, not theoreticians in the study hall—would not execute in such a case if they truly thought that repentance really exempts and the only problem is that we don’t know whether he repented. Therefore, it would seem that the truth is that repentance does not exempt even when I do know. Fine, that’s what the halakhah says. But if the truth were that repentance does exempt, and the whole point were 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. There is a very interesting responsum there, many years ago we learned it here when we talked about responsa; there was a year when we dealt with responsa. We read this responsum, Orah Hayyim 35. There is a bridegroom there who had relations with his mother-in-law. And now the question is whether he has to reveal to his father-in-law that he had relations with his wife. In short, terrible chaos there; not important now. The question is whether he has to reveal it; they get into all kinds of discussions. Among other things, Noda B’Yehuda there discusses our question, whether repentance helps exempt from punishment.

He writes: know that it is absolutely beyond doubt that repentance grants complete atonement, and this is famous in Torah, Prophets, Writings, in both Talmuds, and in all the midrashim. And the prophet says: “When the wicked turns from his wickedness, all his sins that he committed shall not be remembered against him.” And there is likewise no doubt that when the Sanhedrin was operative, if someone committed an offense liable to death by the court after warning, then even if the witnesses delayed and did not come to court for many years, and in the meantime this person repented and undertook countless mortifications and fasts, more and more than the measure of repentance mentioned in Sefer HaRokeach—even after all that repentance, if witnesses then come to court and testify, the court certainly does not pay attention to his repentance and burns or stones him according to the punishment of the sin.

Even though it is clear that repentance fully atones and transforms you into someone clean, just as clearly it does not help exempt one from the punishment of the court. And this is astonishing, says Noda B’Yehuda: since it is certain that the repentance was effective, his iniquity has departed and his sin has been atoned, why should he die? “Do not kill the innocent and righteous,” Scripture says. Yet in law he is executed. And at the beginning of “These are the flogged” it says: those liable to death, if they repented, the court does not forgive them—that’s the Talmud I cited earlier.

So, says Noda B’Yehuda, clearly this is a Scriptural decree. For otherwise all punishments of the Torah would be nullified. That’s Hizkiya’s claim. And no one would ever be executed by the court, because he would say: I sinned, and now I have repented. Every person who sinned would say: true, I sinned, but now I’ve repented, and they would exempt him. So you would basically create a green track: you can murder, desecrate the Sabbath, do whatever with witnesses and warning—everything’s fine. Do it, and afterward inform the court that you repented and you’ll be exempt. Since the Holy One wanted to impose the death penalty for some transgressions so that a person would fear to transgress—the element of deterrence—therefore it is necessary that repentance not help save one from death by the court.

Again, the basic assumption is that repentance really should have helped. There’s no intrinsic reason why not. The only problem is that punishment would be emptied of content if we accepted repentance to exempt from death by the court, because then everyone would get out of it by saying he repented, and at least there would be doubt. Since that is so, you end up exempting him.

Then he continues with his discussion, but that’s what concerns us here. So this is the second possibility. Here too there is room to comment—as I think Shmuel said earlier—there are other ways to deter. I mean, to deter, sorry. You can deter him—just give lashes, not death, or put him into the cell. But in terms of “the congregation shall save,” to exempt him from the punishment of the court, you could exempt him also because of repentance. If the assumption—again—is that repentance in principle ought to have exempted him, and the whole problem is only deterrence, then do whatever is necessary on the deterrence side. But that should be something beyond the law, not something that is the law itself. If the court sees that the hour requires it, then it can punish anyway, because that would be outside the strict law. But on the principled level, that is not the binding rule.

There is the story of Shimon ben Shetah, with witnesses who retracted after testifying against his son, and it turned out the son had not sinned at all, yet he had become liable to death and was executed—a very Socratic story, where he says: yes, yes, execute me because the witnesses said so, even though I’m not guilty. Really a Socratic kind of story. But I think that story is not what should ordinarily be done; rather, there he saw that the hour required it and he had to reinforce the matter. He said: yes, if it was proven in court that I did this act, then I have to be killed so that the public will know. Like Tosafot brings that midrash in Bava Batra about the wood-gatherer: that the wood-gatherer actually wanted to show the people of Israel that one is executed for desecrating the Sabbath, and therefore he gathered wood on the Sabbath. He didn’t really want the wood at all; he was righteous. So Tosafot asks: then why did they kill him? After all, this is labor not needed for its own sake. Exactly. Because he gathered not for the wood but in order to show something. But Tosafot there in Bava Batra—obviously the court didn’t know that. He didn’t tell the court, “I gathered wood to show Israel,” because then he would have spoiled the whole point. So the court didn’t know he gathered wood for that reason; he played the criminal. What kind of question is that?

In any case, the claim is that where the hour requires it, maybe the court would execute. But to establish this as the fixed halakhic standard still seems difficult to me if one accepts the basic assumption that genuine repentance exempts from punishment by the court—which Noda B’Yehuda also seems to accept. It’s not certain he agrees. When Rabbi read him, I understood him to mean that this is an indication that it doesn’t work—but not because the reason is deterrence. “Otherwise the punishments of the Torah wouldn’t exist”; that the Torah wanted to punish because of deterrence—he is talking about deterrence. He says it in… I don’t know, it seems forced to me. He is talking about deterrence. He says the deterrence won’t be achieved. That’s simply his argument.

But let’s now take one more step. I’ll just say what I think. I think that Maharal too—and we’ll see in a moment if we even have time to see him—argues that in principle repentance does not help for punishments of the court. Meaning, he gives two explanations there for why, but he simply argues against the basic assumption of Chida and Noda B’Yehuda. I want to claim, following the whole line we saw in previous classes, that if you did substantial repentance, the great repentance, then it will help exempt from punishment by the court too. If you did the technical repentance, then it won’t help.

Meaning: all that was said, that repentance does not help exempt one from punishment by the court, refers to ordinary repentance, the repentance discussed in the laws of repentance. But substantial repentance—if a person truly turned himself around—then no one would kill him, and it does help even regarding punishment by the court.

Now I’ll present this as a difficulty on Noda B’Yehuda. Noda B’Yehuda basically says that if we exempt a penitent from punishments of the court, then we’ve emptied punishments of the court of all content, because anyone liable to death or lashes will say, “I repented,” and at least because of doubt we’ll exempt him. But if I really say—and this is what I asked against Chida—that the court should check whether he really repented, what’s the problem? If he genuinely repented, then exempt him; and if not, then don’t. In other words, not someone who says “I repented” merely in order to avoid punishment, but someone who truly repented. Fine. Then if he truly repented, really exempt him. If he didn’t repent, then punish him. If he is only lying, or didn’t do full substantial repentance, then impose punishment.

But if the court can examine him, then let it examine him and decide whether he repented or not. And if it reaches the conclusion that he did repent—and we saw that the court can determine that a person genuinely repented for purposes of witness validity and the like—then here too let it exempt him from punishment. So again, Noda B’Yehuda, even though he is going in a somewhat different direction, seems to share Chida’s assumption that the court probably cannot truly know whether the person repented or not. Because if the court could know, I think his question would not be a question. If he genuinely repented, the court really can exempt him, and it is not true that everyone can just come and say “I repented.” That won’t be enough; he has to persuade the court that he is truly a genuine penitent. Noda B’Yehuda apparently understands that the court cannot determine this, like Chida—but I say that is difficult, difficult in light of all the places we’ve seen.

Therefore I want to argue that Noda B’Yehuda’s question is not difficult. The claim is that genuine repentance really does help. Technical repentance does not help exempt from punishments of the court; it is accepted in heavenly judgment, it is beyond the letter of the law, but it does not exempt from punishments of the earthly court. Then Noda B’Yehuda’s difficulty disappears. Why? Because it is not true that anyone who committed an offense can come to court, say “I repented,” and be exempt. Not true. He will not be exempt—only if he really… It’s like saying there’s no point in disqualifying witnesses, because anyone you disqualify can say “I repented” and become a valid witness. He will not become a valid witness unless the court examines him—those three years we mentioned earlier, or however long—and sees that he really behaves differently and did genuine repentance, and does not lend at interest even to a non-Jew because true penitents distance themselves even from things that are technically permitted. Then he is truly a genuine penitent. In such a case, we really would exempt him from punishment. What is the problem with that? It does not empty punishment of content. On the contrary: that way punishment achieves its goal. What could be better than punishment’s succeeding in bringing the person back? In the background, of course, there always remains the threat that the punishment will be imposed if we are not persuaded that you are a genuine penitent.

But until now there is no source that says there is such a situation where the court was convinced. There’s no source. Right. At this stage, I’m saying all the sources say it doesn’t help. Yes, but the court can determine. Yes, but the court can determine, and all the sources say that even so, in court it doesn’t exempt. So now I’m asking why. And I’m saying that what Noda B’Yehuda says is not convincing, and what Chida says is also not convincing, so I want to suggest another possibility: all those sources are talking about the “small repentance.” The “great repentance” does help. In a moment I’ll prove it. Is there a source for that? Yes—that’s what I’m looking for.

When do we now give him the lashes and wait, Rabbi? Technically, when are we persuaded he did technical repentance? Right now he finished the trial; he deserves lashes. Yes, we’ll execute him too, not only lashes. So when are we persuaded? I don’t know. If he repented, let him say he repented and we’ll check. But how will we check? How much time? There’s a missing stage here. If he comes and says, “I am truly, truly a genuine penitent,” and everyone being led out to execution pleads for his life—you see the remorse, you say he is surely a penitent. So we’ll wait until we are convinced it’s genuine repentance and then exempt him. That’s all. However much time the court needs—a month, a week, a year, whatever the court needs. Fine. What’s the problem in not killing him? But if we become convinced it isn’t serious, then no—we’ll execute him or flog him.

Let’s go the other way. If they became convinced the repentance is not genuine, then regarding the thief you say after some years they restore him, even though that repentance too—who knows if it’s genuine. Right—what’s the question? Yes, because it sounds reasonable—why not? I don’t know, because it’s not genuine repentance, because the court says to him: listen, we know your repentance isn’t genuine. But regarding thief and wicked person, one has to understand. I said that in Maimonides it appears that those liable to lashes are called wicked—“and if the wicked man deserves to be beaten.” So if someone is liable to lashes, he is wicked and disqualified as a witness. If he was flogged, even without repentance, he returns to validity. Why? So the Ketzot writes—not on this exact point, but he argues that there are two kinds of wicked people who are invalid as witnesses: a “wicked extortioner” and a wicked person liable to lashes or death, liable to punishment. A wicked extortioner is a robber or someone who causes damage or something like that. What does the Ketzot say? That there is a difference between them. The extortioner is suspected of lying; he is invalid because of suspicion of falsehood. But a wicked person liable to lashes is invalid by Scriptural decree—a bodily invalidity, not suspicion of lying.

If so, then indeed it may be that once he was flogged, the bodily invalidity is removed. Why? Because why was the wicked person invalidated in the first place? It seems to me this is the most plausible explanation, even though it’s a Scriptural decree. It’s a Scriptural decree because it’s not about suspicion of lying—what he says may be true. But why do I disqualify him? More than that: I’m not willing to grant him standing. Think about it. A person who, say, devours pork for pleasure day and night, a major pork merchant selling to everyone—fine? Then he comes to court and testifies that so-and-so desecrated the Sabbath, and we kill the Sabbath-desecrator on the basis of his word. Again, I’m not saying he’s suspected of lying. As to truth, he is reliable. But do you understand what kind of standing this gives him? On the basis of his word, a person was executed. Meaning, the court accepted his testimony, treated what he said with respect, and acted on it—made a ruling based on him. The Torah is not willing for criminals to be given that kind of standing.

Where the offender has been flogged—what people today call “he paid his debt to society”—then from the standpoint of social appearance, he is okay; he was already punished. From that point on we can accept his testimony, because the assumption is that what he says is true. So this is handled almost like a sanction: withholding witness-validity becomes a kind of punishment. It isn’t exactly punishment, but public education; still, it functions like punishment. And that lasts only as long as he wasn’t punished. Once he was punished, then that’s it—he’s back to being an ordinary citizen. He did not repent and God won’t forgive him, fine. But witness-validity is determined by whether you are socially seen as a public wicked person. And from the public’s perspective, 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.

So there is no problem. As long as you haven’t been punished, you are disqualified as a witness. That’s why today, by the way, it really is problematic, because today there is no court that administers lashes. This returns us to the renewal of ordination. There is no court that administers lashes, and it comes out that wicked people have no way to return to validity so long as they have not been flogged. But if they repented, that would restore them to validity even if they weren’t flogged. What practical difference does validity make? Witness validity. Does the status of “wicked” apply even without a court today? Of course. A court today too can determine that a person is wicked for matters relevant today.

Everything you just said was exactly your challenge to Chida: how can you say the court cannot determine? Here, in the case of the robber, the court did determine. Right—here’s the answer. There is public repentance and non-public repentance, in the sense of how society relates. No, public repentance is not determining he is a penitent. Public repentance is that he paid his debt to society—that is not being a penitent. I’m talking about matters of the heart. A person repented; there the court determines that a person repented. I said, in Maimonides’ specific approach regarding those liable to lashes, there are things that require repentance. For those liable to lashes, repentance isn’t needed; it is enough that he was flogged. 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 validity—or in those offenses where repentance is required. There are offenses that require repentance, and others where lashes are enough. So what, we have two tracks? Yes. And I’m really continuing the claim I made all along: there are two tracks of repentance. There is the small repentance and the great repentance. And in this context too—whether repentance helps exempt from punishments of the court—I continue the same distinction. The small repentance does not help; the great repentance does help. Because if a person turned around, then he turned around—he really is someone else. You can’t kill such a person. He’s another person. The same argument I made all along, I’m saying again here.

Now I’ll bring you a few proofs or indications for this. This part doesn’t appear in that article in Yossi’s book. The distinction between great repentance and small repentance also isn’t there, and the proofs I’m now going to bring came to me later. Publish a second edition and let me know.

Look: there is a rule that one who admits liability to a fine is exempt. If a person comes and voluntarily admits that he committed an offense that would obligate him in a fine—for example, he admits that he stole—then that would obligate him in the double payment fine, or four- and five-fold if he slaughtered or sold, and yet he is exempt from the fine. The principal amount he must of course pay. Why? Because the principal is compensatory payment. Meaning, you damaged someone, restore the money; you took from him, harmed his property—restore things to the way they were. But the fine is punitive payment. So if you admit liability to a fine, you are exempt; meaning, you are not liable to that punitive aspect of the fine. Why exactly not? Interesting question.

But let’s look at another law. There is a dispute between Rav and Shmuel in Bava Kamma and elsewhere: what happens if someone admits liability to a fine and afterward witnesses come? I came and admitted that I stole, and afterward witnesses came and said that I stole. So the admission itself is not enough to obligate me in the fine, but now there are witnesses. Forget the admission; the admission didn’t obligate me in the fine, but now there are witnesses. The witnesses say I stole. The question is whether the admission didn’t exempt him vis-à-vis the witnesses. Exactly, very good. So the dispute of Rav and Shmuel is precisely that question: one who admits liability to a fine and afterward witnesses come—is he liable or exempt? That’s the dispute. In practice we rule that he is exempt.

The later authorities explain, in various formal study-hall formulations, why he is exempt. They say the admission not only does not obligate him—the admission exempts him. Others say that if he admitted, it is as if he paid the fine. There are additional formulations in the books. I’m more willing to go with the first formulation, because then it really seems natural—and I once told this story, that I led a seminar for Professor Rakover with all kinds of jurists, lawyers and judges. He runs these weekend retreats with marathon workshops through the whole weekend, and I led one of those workshops. When we studied this sugya, there was some judge there who clearly didn’t really know how to learn, and he said: well, they forgive him—he admitted, so they forgive him, and therefore even if witnesses come afterward he is exempt.

At first I sort of chuckled inwardly at that balebatish answer. Then I said to myself: wait a second, actually that’s an excellent answer. It’s a really nice answer and an excellent explanation. And it also explains very well why if witnesses come afterward he is still exempt: because the admission, as the later authorities say, exempts—it doesn’t merely fail to obligate. Why exactly does it exempt? The simplest explanation in the world: if he came and admitted voluntarily, then he repented. If he repented, then he is exempt from the punishment.

I have another answer: because if he knows witnesses are going to come… No, wait—what are you trying to achieve? You want the opposite case, right? There are two punishments here. The Talmud says there are two punishments. I know, I’m familiar with it. But there are two punishments here. One punishment is the fine, and one is… A robber doesn’t pay double—why? Because he says to you: I stole. He doesn’t need the… they see him. Fine, doesn’t matter. He says: I’m taking it; I don’t care what you say. And with a thief we want to encourage them to confess. Meaning, if he confessed, then all we want is to restore the money to the one it belonged to, just like with a robber. But does that encourage him to confess? Certainly, because if he knows witnesses are coming, he says to himself: too bad for me; it’s worth confessing now. But if he knows witnesses are coming, then in fact he isn’t exempt. Of course he won’t be exempt, because we know we aren’t comforting him. Not admission when he knows they’re coming, because then every thief would say, only if I know witnesses are coming will I confess. Exactly—that’s the point. If he doesn’t know witnesses are coming, then why exempt him? It won’t encourage him to confess, because generally they won’t catch him. Of course they’ll catch him—it’s like all this weapon collection now: “return it with no punishment,” then people do return it. But if for everyone who returned it we’d also punish him, no one would return it. Why, obviously—and what does that have to do with it? If he wants to confess in any case, you say you’re allowing him to confess, but that itself won’t encourage confession, because in any case generally they won’t catch him if there are no witnesses. On the contrary, the Talmud says that if he comes because he’s afraid of 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 then said, I want to confess—on the contrary, I want people to know… meaning you should take into account that maybe someone saw you. No—but on the contrary, the Talmud says that if that really is why I came, then I am not exempt. I know, I agree, I’m just… So then why is it an incentive to confess? You want there to be fewer thieves, right? That’s what the Talmud wants—that there be fewer thieves. No, no—it wants them to confess. Meaning, not just confess; you want to reduce the phenomenon. So with a robber, which is ostensibly the same issue, there there is no double-payment fine, unlike a thief where there is. Right, so what? Because thieves are… I’m saying: with thieves, if you impose double payment, take into account that the punishment will be more severe, so you say I want to reduce the phenomenon and therefore I impose a harsher punishment. Okay. So why waive it if he comes and confesses? Give the harsher punishment in order to deter future thieves. No, because if the person confessed, he turned into a robber. Meaning, if he came before there were witnesses. If so, then that’s a special law about thieves. But the law applies generally to all fines, not only theft as opposed to robbery. In all fines you are exempt when you confess.

Anyway, I just want to complete the line. The claim is that one who admits liability to a fine and afterward witnesses come is exempt because of repentance. The Talmud says that if he heard the witnesses were on their way and then rushed to confess, he is not exempt. Why? Because he confessed out of fear of the witnesses. Meaning, he confessed because he was scared of the witnesses. So what’s the practical upshot? He confessed, and confession exempts. Not formalism. Confession exempts when it expresses genuine repentance. When there is repentance, you are exempt from the punishment. If you confess because you hear witnesses are about to arrive, then you are not a genuine penitent, and so it does not exempt you. It’s as simple as can be.

If so, then there is room to wonder what happens with someone who confesses to an offense punishable by death or lashes—not a fine. Someone comes and confesses that he ate pork, an offense carrying lashes or death. What do you say? I already argued long ago in a note in one of the posts—I argued there, in that post about state’s witnesses, in a note there I wrote that by reasoning it seems to me that he too should be exempt. The same logic as “one who admits liability to a fine is exempt.” If confession or repentance exempts from punishment, then repentance ought to exempt from punishments in general, not only monetary fines. What about death and lashes?

But it has to come to expression. Wait, I’ll explain. Cases of admitting a fine are common. What about… I’ll say—it’s also written. In tractate Makkot 5, Rashi writes—and the Rakh also write—something very strange, and Tosafot is very astonished by them. I didn’t bring it here, but Rashi there and the Rakh write that if a person confesses to liability to death or lashes, he is exempt. That’s how he explains the Talmud there, and that’s the plain meaning of the Talmud in Makkot 5a. Tosafot—there are two Tosafot passages there—asks against Rashi: what do you mean? We didn’t find such a thing. And we already brought earlier the proof from Makkot 13. This is Makkot 5; Makkot 13 is the source that repentance does not exempt from punishments by the court. But Rashi and the Rakh say yes, and there are other medieval authorities there too—I brought here from Tosafot Shantz something that suggests this.

But Tosafot says no—we have not found such a thing. Rashi says yes, and I think this is an extension of the principle of one who admits liability to a fine. One who admits liability 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 punishment of lashes and death. Why? How does that fit, when Rashi himself we saw in 13 says that repentance does not exempt from punishment by the court, eight pages later? Rather, my claim is that that is the substantial repentance and this is the small repentance. Small repentance truly does not exempt from punishment, and that is what is written on page 13. On page 5, what Rashi says refers to substantial repentance—the repentance of Rabbi Elazar ben Dordaya, the case of one who betroths a woman on condition that “I am a complete righteous person,” where in the span of a thought he can become a complete righteous person, without all the stages of repentance. Why? Because substantial repentance transforms you—you are someone else. Once you are someone else, we do not play these formalistic games with you: did you fulfill the requirement or not, did you do the necessary steps or not? If you turned around, you turned around; you are someone else. Who would kill a person who is a penitent?

Remember what I said about Maimonides. We started with Maimonides saying that the intermediates are suspended during the Ten Days of Repentance: if they repent, good, and if not, they are sealed for death. They ask there: why does only repentance help? Let him do additional commandments and tip the scale to the side of merit. Why does only repentance help? I brought two explanations there. One was that repentance removes the sins from the scale that already existed on Rosh Hashanah, while the commandments you do now count for next year’s balance. And the explanation of Rabbi Chaim Friedlander, who says that repentance changes the person. Once repentance changes the person, he is someone else. It is no longer a matter 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 he is now a different person already? And I said that this is by law. This kind of repentance is accepted by law; it is not special kindness, not beyond the letter of the law.

Maharal, whom I didn’t manage to read here, says that why does the earthly court not exempt from punishment when a person repents? Because the earthly court judges by strict law. And to forgive a person on the basis that he repented is beyond the letter of the law—that is only for the Holy One. Now I am claiming that substantial repentance, the person who did that, deserves exemption by law. That was the whole line of the previous classes. If so, then here too, in the earthly court, it should work. And that is Rashi on page 5. Therefore he says repentance exempts from punishment by the court.

And what is the idea behind it? Again I return to the difference between the study hall and the judge. When you stand before a person whom you know is already another person, you will not kill him, nor even flog him. In the study hall you can say whatever you want, but you won’t do it. We’re talking about a person who is entirely different now, one of the righteous pillars of the community, who became a complete righteous person, a true penitent, really does only good deeds, distanced himself as much as possible from the sin. So now you’re going to flog him because at some time in the past he did something? No. In practice, I think that won’t happen. They’ll find some legal device why not to flog him or not to kill him, something like that. And what I’m claiming is that it’s not just a device—it’s the halakhah.

But in civil court it will happen. What? In civil court it will happen. Fine, in civil court maybe it will happen. Maybe repentance plays a different role there. But I think in Jewish law it won’t happen. Where there is some kind of Socratic need—I brought that case—then maybe they would punish because there is a need. But on the principled level, absent those social considerations, the person would be exempt. Therefore I think this completes the same picture I’ve been presenting: great repentance does not work according to the usual halakhic rules of what is indispensable and what is not, what repentance can or cannot do, whether you did this required thing or did not do that required thing. If you turned around, you turned around. It’s not a question of whether you formally fulfilled your duty. So also in this context of the court, I think it’s the same thing.

Okay. May you have a good final sealing. We’ll see each other after Sukkot. After Sukkot. Shemini Atzeret is on Thursday, so the week after that. The week after that. Thank you.