Topics in Tractate Makkot, Chapter 3 – Lesson 2
This transcript was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.
🔗 Link to the original lecture
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Table of Contents
- Flogging and repentance as atonement for karet — Maimonides versus Nachmanides
- The connection to the controversy over renewing ordination in Safed
- Does repentance exempt a person from punishments imposed by a religious court?
- Rejecting the explanation that a religious court cannot determine repentance
- Proof from Tosafot — repentance and punishment in the same Talmudic passage
- Maimonides in the laws of rebels — absolute trust in the determination of the religious court
- Disqualified witnesses — a wicked person motivated by gain versus one not motivated by gain
- Public appearance as an explanation for disqualification from testimony
- Flogging versus repentance — what restores a person’s fitness?
- “One suspected regarding a matter neither judges it nor testifies about it”
- The apostate city and repentance — Maimonides versus the Raavad
- The Talmud in Yoma — suffering as part of atonement
Summary
General Overview
This lecture continues the discussion of topics from the third chapter of tractate Makkot. Rabbi Michael Abraham completes the discussion of flogging and atonement for karet (the dispute among Nachmanides, the Baal HaMaor, and Maimonides), moves on to the central question of the status of repentance in an earthly religious court, and analyzes in detail the explanation for why repentance does not exempt a person from punishments imposed by a religious court — while rejecting the common explanation that a religious court cannot determine whether someone has repented. The lecture includes a detailed discussion of disqualified witnesses, the distinction between a wicked person motivated by gain and one not motivated by gain, and many examples from different halakhic sources.
Flogging and repentance as atonement for karet — Maimonides versus Nachmanides
Maimonides writes in his commentary on the Mishnah: “We have already explained that flogging together with repentance will atone for karet.” The meaning is that both components are needed together — both flogging and repentance — in order to be freed from karet. This is unlike Nachmanides in Milhamot, according to whom each of the two channels (flogging or repentance) stands on its own and atones independently. The difference between the approaches is substantial: according to Maimonides, repentance alone is not enough to atone for karet; according to Nachmanides, repentance alone is enough.
The connection to the controversy over renewing ordination in Safed
This dispute among the medieval authorities (Rishonim) is directly connected to the controversy over renewing ordination in Safed in the sixteenth century. The sages of Safed ordained Rabbi Yaakov Beirav, who then ordained five of his students, in order to establish a religious court that would flog the conversos from the expulsion from Spain and free them from karet. Maharlbach objected and argued that there was no need for flogging — let them repent and achieve atonement. According to Maimonides, the sages of Safed were right: without flogging there is no full atonement for karet, even with repentance. According to Nachmanides, Maharlbach was right: repentance alone is enough.
Does repentance exempt a person from punishments imposed by a religious court?
This is the central question of the lecture. From the Talmud in Makkot it emerges that repentance does not exempt a person from punishments imposed by a religious court (flogging, execution), whereas for punishments from Heaven (karet, death at the hands of Heaven), repentance does help. The question is: why? If a person repented and his sin was forgiven — what is he being punished for? Repentance out of love turns intentional sins into merits, the person becomes completely righteous — so why would a religious court continue to punish him?
Rejecting the explanation that a religious court cannot determine repentance
The common explanation (found in Chida, Arukh HaShulchan, and others) is that a religious court cannot know what is in a person’s heart, and therefore cannot determine whether he has truly repented. The Rabbi firmly rejects this explanation and brings several proofs: (1) In the Shulchan Arukh, Choshen Mishpat section 34 — a thief and a robber are disqualified from testimony until they repent, and it is the religious court that determines whether they repented. (2) The Rema: an apostate who retracts and accepts repentance upon himself is immediately fit — the religious court decides. (3) The Mishnah in Yevamot regarding the son of a mamzer: if the father repented, the son is obligated to honor him — and the practical implication is that if the son curses the father, he is executed for it. In other words, a religious court executes a person based on its determination that another person repented.
Proof from Tosafot — repentance and punishment in the same Talmudic passage
Tosafot in Yevamot present a case in which the father repented, and therefore the son is obligated to honor him — but the father himself is still liable to flogging (another religious court agent would flog him). In the very same Talmudic passage both things are true: the religious court determines that the father repented (to the extent that the son who curses him becomes liable to death), and yet the father is not exempted from flogging. This is strong proof that the reason is not the court’s inability to determine repentance.
Maimonides in the laws of rebels — absolute trust in the determination of the religious court
Maimonides writes that even if the parents are complete wicked people whose verdict for execution has already been finalized, if they repented — the son is liable and is executed for cursing them. The religious court executes the son on the basis of its determination that the parents repented. The Or Sameach expands this and says that even if it is not certainly known that the parent repented, mere concern is enough (like a thought of repentance in the heart, similar to the law of betrothal) to prohibit striking or cursing.
Disqualified witnesses — a wicked person motivated by gain versus one not motivated by gain
The Rabbi analyzes the distinction between two types of wicked people who are disqualified from testimony: a wicked person motivated by monetary gain (whose offense is connected to coveting money — a thief, a robber) and a wicked person not motivated by gain (one who violated a prohibition punishable by flogging). The Ketzot and other later authorities (Acharonim) discuss: is the disqualification of a wicked person based on suspicion of lying, or is it an inherent personal disqualification? The Rabbi suggests that a wicked person motivated by gain is disqualified due to suspicion of lying, whereas a wicked person not motivated by gain is disqualified because of public appearance — there is no place to grant public standing to someone who was flogged in full public view.
Public appearance as an explanation for disqualification from testimony
The Rabbi strengthens the public-appearance thesis: why is only someone who violated a prohibition punishable by flogging disqualified, but not someone who violated a prohibition linked to a positive commandment or one involving no action? After all, both are wicked. The explanation: it cannot be that a person testifies and tomorrow will be flogged in front of all Israel — this is a problem of public appearance, not of reliability. Someone who ate pork is no more suspected of lying than someone who left over sacrificial meat from the Passover offering overnight, but the former gets flogged and the latter does not — and the difference is public appearance.
Flogging versus repentance — what restores a person’s fitness?
For a wicked person motivated by gain — flogging will not help, because the problem is suspicion of lying, and only repentance resolves suspicion of lying. For a wicked person not motivated by gain — flogging does help, because once he has been flogged, the criminal status expires and the public appearance issue is corrected. The Shulchan Arukh rules that returning the money alone is not enough for a wicked person motivated by gain — repentance is also required, because returning the money under court order is not repentance.
“One suspected regarding a matter neither judges it nor testifies about it”
The Rabbi distinguishes between a wicked person (who is disqualified from all testimony) and someone merely suspected (who is disqualified only from testimony on the matter regarding which he is suspected). This distinction reinforces the public-appearance thesis: if the disqualification were based on suspicion of lying, we would disqualify the suspect in all matters; but the suspect is disqualified only in his own area — because the problem is public appearance, not reliability.
The apostate city and repentance — Maimonides versus the Raavad
Maimonides writes that in the case of an apostate city, Torah scholars are sent to warn the inhabitants and bring them back in repentance, and if they return — they are exempt. The Raavad objects: “I have not found repentance to be effective after warning and action.” The Migdal Oz claims this is a scribal error in Maimonides. The Rabbi suggests that an apostate city may not be an ordinary religious-court punishment (since they are attacked in war, and the four modes of execution are not carried out), and it may actually be a punishment from Heaven carried out by human beings — and therefore repentance may indeed help.
The Talmud in Yoma — suffering as part of atonement
The Talmud in Yoma distinguishes levels of atonement: for neglect of a positive commandment — repentance alone atones; for violating a prohibition — repentance suspends and Yom Kippur atones; for sins punishable by karet or death — repentance and Yom Kippur suspend, and suffering cleanses. Some later authorities suggest that the flogging is the suffering the Talmud is talking about, and therefore repentance alone is not enough because the component of suffering-flogging is also needed. This topic again connects to the ordination controversy: nowadays, when there is no flogging, are repentance and Yom Kippur enough for prohibitions?
Full Transcript
[Speaker A] Okay, let’s begin.
[Rabbi Michael Abraham] In the previous lecture we saw that people liable to punishments imposed by a religious court are not exempted through repentance, whereas for punishments from Heaven, like karet or death at the hands of Heaven, they are. Therefore Rabbi Akiva inferred from this that those liable to karet receive flogging, because there are not two wickednesses here. Those liable to execution by a religious court are not flogged, because there are two wickednesses there — both flogging and death. For those liable to karet, since this is an obligation from Heaven, and Heaven, if I repent, forgives the karet, then in effect a situation in which it is not certain that I bear the punishment of karet is not called two wickednesses. That’s what the Talmud says, and therefore I can in fact be flogged for an offense carrying karet, and that is Rabbi Akiva’s approach. This passage is really the basic source for the issue we’ll deal with at length later — that punishments from Heaven are affected by repentance, but punishments imposed by a religious court are not affected by repentance. So later we’ll talk about why, how we see it, what exactly it means, whether it fits or doesn’t fit. But for now I still want to complete something from the previous lecture. I mentioned it briefly in the summary of the previous lecture, and I want to spell it out a little more. So the Talmud says, wait, there is—
[Speaker A] There’s some kind of problem here, it’s not letting me—
[Rabbi Michael Abraham] share from the second screen, one second.
[Speaker A] Okay, finally we’ll learn.
[Rabbi Michael Abraham] Fine. So the Mishnah on page 23 — I think I mentioned it at the end of the previous lecture — says this: “All those liable to karet who were flogged are exempt from their karet, as it says, ‘Then your brother shall be dishonored before your eyes’ — once he has been flogged, he is like your brother,” these are the words of Rabbi Hanania ben Gamliel. Meaning, if someone is liable to karet, then when he is flogged, his karet is canceled, yes? The flogging exempts him from the liability of karet. The Talmud there says as follows: Rabbi Yohanan said: His colleagues disagree with Rabbi Hanania ben Gamliel. Hi Rabbi, sorry I’m late. Hello, hello. Okay, so the Talmud says this: Rabbi Yohanan said: His colleagues disagree with Rabbi Hanania ben Gamliel. Meaning, there are tannaim who disagree with Rabbi Hanania ben Gamliel; that means they apparently hold that people liable to karet who were flogged are not exempt from their karet. Rav Adda bar Ahava said: They said in the house of Rav, we learned it — yes, what is the source, who are those who disagree? A Mishnah in Megillah: “There is no difference between the Sabbath and Yom Kippur except that for this one, deliberate violation is punished by human hands, and for that one, deliberate violation incurs karet.” And if that were so, then both of them would be by human hands. Meaning, the deliberate violation of Yom Kippur is punished by karet; there is no death penalty for Yom Kippur. But according to Rabbi Hanania ben Gamliel, those liable to karet are flogged. So then those liable to karet also have an aspect of human punishment. So why does it say, “this one is punished by human hands and that one by karet”? Both are by human hands. Well, I have to say, objections don’t bring the house down — saying that one is punished by karet when karet also has an aspect of human hands, I don’t think that’s so terrible. And what the Talmud asks — Rav Nahman bar Yitzhak says: Whose view is this? Rabbi Yitzhak’s, who says that there is no flogging for those liable to karet, as it was taught: Rabbi Yitzhak says those liable to karet were included generally, and why was karet singled out in the case of one’s sister? To judge it by karet and not by flogging. Fine, so he learns from a verse that those liable to karet are not liable to flogging. And that goes like Rav Nahman bar Yitzhak. The Talmud says: Rav Ashi said: You can even say it follows the Rabbis, those who say they are indeed liable to flogging — this one is primarily punished by human hands, and that one is primarily punished by Heaven. Meaning, Yom Kippur is primarily punished by Heaven — that’s the karet. True, he’s also flogged. But the primary punishment is from Heaven, that is, karet. And the Sabbath — its primary punishment is by the court, yes, by human hands. So there’s no difficulty even if we don’t follow Rabbi Yitzhak; it can go also with the sages who disagree with him. Rav Adda bar Ahava said in the name of Rav: The Jewish law follows Rabbi Hanania ben Gamliel. And what is that? That those liable to karet who were flogged are exempt from their karet. Meaning, they are liable to flogging, and the flogging exempts them from karet. Rav Yosef said: Who went up above and came back and told us? Who was up there to tell us what happens with this karet? What does he mean, what happens with this karet? The fact that we administer flogging is in human hands, but that those floggings exempt you from karet — for that you’d have to ask the Holy One, blessed be He. How do you know that after someone was flogged, God exempts him from karet? Abaye said to him: Then what about that statement of Rabbi Yehoshua ben Levi, that there are three things that the earthly religious court did and the heavenly court agreed with them — who went up above and came back and told us? Rather, we expound verses; here too, we expound verses. Okay? Meaning, he expounds “Then your brother shall be dishonored before your eyes” — once he has been flogged, he is like your brother. So he learns it from the verse; he doesn’t need to ask the Holy One, blessed be He, in the heavenly court what happens to the karet. We learn from the verses how Heaven regards it. Of course, some of these statements are not really talking about Heaven literally at all; “Heaven agreed with them” means they did the right thing. In our case, when you actually say that he is exempt from karet, you can’t interpret it that way. When you say that once he received flogging, it exempts him from karet, “exempts him from karet” means that something truly happens in the heavenly court. It’s not some metaphorical statement meant to emphasize something; they are saying he is exempt from karet. Here this really is a major question: who was up above and told us? He says: I expound the verse. So the Baal HaMaor there asks as follows: “Rabbi Yohanan said: His colleagues disagree with Rabbi Hanania ben Gamliel,” and so on. And if you say, why did they not derive it simply from Rabbi Akiva — going back to our topic — who said that those liable to karet are included in the forty lashes, because if they repent, the heavenly court forgives them? The reason is if they repented; but if they did not repent, they are not exempt from their karet. So it follows that Rabbi Akiva disagrees with Rabbi Hanania, because Rabbi Hanania is speaking even where he did not repent, for if he had repented, repentance exempts them and not flogging. What is he really saying? He’s saying: when Rabbi Hanania says that those liable to karet who were flogged are exempt from their karet, he means those liable to karet who were flogged without repenting. The very fact that they were flogged exempts them from karet. Now Rabbi Akiva says that what exempts them from karet is repentance. Repentance perhaps with flogging, perhaps without flogging — we’ll still see about that. But repentance exempts them from karet. So it turns out that flogging, if you didn’t repent, does not exempt you from karet. In other words, you see that Rabbi Akiva disagrees with Rabbi Hanania ben Gamliel. So when the Talmud says “his colleagues disagree with Rabbi Hanania ben Gamliel,” why go to the Mishnah in Megillah with deliberate violation, karet, primary punishment, strained answers and all sorts of things? You have Rabbi Akiva, who explicitly disagrees with Rabbi Hanania ben Gamliel. You don’t need to go far. So the Baal HaMaor answers: We may answer there, this is what it means there: if they repented, the heavenly court forgives them even though they were not flogged. And since so, that wickedness is not definite, and it is as though it were not there. Therefore we obligate him in flogging even where he did not repent, and they are not like two wickednesses — the flogging and the karet imposed upon him to receive both. And forever, where he was flogged, he is exempt from karet like Rabbi Hanania ben Gamliel, and Rabbi Akiva does not disagree with him at all. Meaning, we need to explain — to explain that Rabbi Akiva does not disagree with Rabbi Hanania ben Gamliel. That’s why they went to the Mishnah in Megillah. Why does Rabbi Akiva not disagree with Rabbi Hanania ben Gamliel? Because Rabbi Akiva also agrees that flogging exempts from karet. Okay? So if flogging exempts from karet, then when do we say that he is liable to flogging and it is not two wickednesses? So he says this is only when he did not repent. Meaning, if he did not repent, then he is flogged. Okay? You say yes, but if he did not repent, then he has both flogging and karet, so that is two wickednesses. Rabbi Akiva says yes, but he could have repented and been exempt from karet. Not only that — he still can, even after he was flogged, later on he can repent and be exempt from karet. So whether he repented or not, I can flog him because this is not considered two wickednesses. Okay? So in the end the claim is that Rabbi Akiva also agrees that flogging exempts from karet. Rabbi Akiva claims that flogging exempts from karet only with repentance. Okay? But he too agrees that flogging — sorry, no — he says Rabbi Akiva also agrees that flogging exempts from karet, wait, flogging exempts from karet with repentance, yes. So we have to say that according to Rabbi Akiva, flogging exempts from karet with repentance. Okay? So what now? So now Rabbi Akiva is really saying this: why do we flog him? Isn’t it two wickednesses — he has both karet and flogging. No. Since he can repent, he can be exempt from karet, and therefore even if he didn’t repent and in the end he will indeed be liable to karet, it still is not considered two wickednesses, because one of the wickednesses is uncertain; it depends on whether he will repent or not. Now when we say that Rabbi Akiva and Rabbi Hanania ben Gamliel do not disagree, as emerges from the Talmud here, then according to the Baal HaMaor it turns out that Rabbi Hanania ben Gamliel too, when he says that those liable to karet who were flogged are exempt from their karet, means they were flogged and repented. Right? Because otherwise Rabbi Akiva really would disagree with him. Rabbi Akiva requires flogging plus repentance. Meaning, the Baal HaMaor fully identifies Rabbi Akiva and Rabbi Hanania ben Gamliel, and for both of them, flogging and repentance together exempt from karet. One second.
[Speaker A] Okay. And Nachmanides in Milhamot—
[Rabbi Michael Abraham] there he says as follows — the Baal HaMaor and Nachmanides are on page 23, yes, at the end of the chapter. What does he write? “This answer too is incorrect; it was not stated properly. Certainly, if Rabbi Akiva holds like Rabbi Hanania, then obviously we do not have here two wickednesses, for if one is carried out, the other does not remain. So why was there any need here to mention repentance? Even if you say repentance does not atone, they are not two wickednesses, because the flogging exempts.” What is he saying?
[Speaker A] What is he saying, really?
[Rabbi Michael Abraham] He’s asking exactly the question I avoided before. He’s basically saying this: if Rabbi Akiva agrees with Rabbi Hanania ben Gamliel that flogging exempts, right? Then what sense does it make to say that repentance exempts from karet? After all, the flogging already exempted him. Meaning, you don’t need to arrive at the conclusion that repentance exempts from karet, because the flogging already exempted him, okay? Therefore, in any case there are not two wickednesses here. You do not need to get to the claim that repentance exempts him from karet in order to explain why there are not two wickednesses here. There are not two wickednesses because if he is flogged, then he is no longer liable to karet; the flogging itself exempts him. Okay? So therefore it cannot be that Rabbi Akiva holds like Rabbi Hanania ben Gamliel. He obviously assumes — against the Baal HaMaor — that when Rabbi Hanania ben Gamliel says flogging exempts, he means flogging without repentance. Flogging without repentance exempts. And Rabbi Akiva says repentance exempts, and I explained that this is apparently repentance plus flogging. So first of all, it follows that Rabbi Akiva is not exactly like Rabbi Hanania ben Gamliel. So that’s already a comment on the Baal HaMaor. Maybe that can be explained — okay, in terms of the point that flogging exempts, he agrees. True, he also requires repentance, but on that point he agrees. But the harder question is why Rabbi Akiva, in his reasoning, needed to get to the idea that repentance exempts from karet in order to explain that there are not two wickednesses here. There are not two wickednesses even without that. Even according to Rabbi Hanania ben Gamliel, who does not require repentance, this too is not two wickednesses. Why? Because if he is flogged, then that exempts him from karet, so there is no situation where he is liable to both, flogging and karet. Not because the karet is forgiven through repentance — he didn’t repent, so what difference does it make? Once he was flogged, he is exempt from karet. So there is never a situation in which he is liable to two wickednesses, karet and flogging. Once he was flogged, he is exempt from karet. Now, I said before that perhaps the Baal HaMaor holds — and it’s reasonable that he does — that probably Rabbi Hanania ben Gamliel also says like Rabbi Akiva. Even according to Rabbi Hanania ben Gamliel, when he says that flogging exempts from karet, he means flogging plus repentance exempts him from karet, not flogging alone. That of course resolves both questions. First, it means Rabbi Akiva is exactly like Rabbi Hanania, not that Rabbi Hanania is satisfied with flogging and Rabbi Akiva wants repentance too, but rather he is really like Rabbi Hanania — both require both flogging and repentance. And second, Nachmanides’ second question also falls away, because Nachmanides asks: if flogging exempts from karet, then why does Rabbi Akiva need to say at all that repentance can exempt him from karet and therefore there are not two wickednesses? Even without that, once you were flogged you are exempt from karet, so you are never liable to both flogging and karet, so there aren’t two wickednesses here. Not so — since flogging plus repentance exempts you from karet, but flogging alone does not, okay? So Rabbi Akiva says: flogging you are liable to in any case. If you repent, you’ll be exempt from karet, and therefore even if you did not repent — in which case you are liable both to flogging and to karet — it is still not considered two wickednesses. Why? Because the karet is uncertain: if you repent, you will be exempt from karet, and if not, not. An uncertain wickedness is not considered a second wickedness. Okay? That is basically the claim. There is of course a third possibility in explaining the Baal HaMaor and resolving this difficulty. One could say that the Baal HaMaor holds that when you are liable to karet and flogging, even if flogging alone exempts you from karet, it is still considered two wickednesses — unlike what Nachmanides says. Why? Because in the end you incurred both flogging and karet; you incurred both. True, if you are flogged, that will exempt you from the liability of karet, but when I ask what liabilities rest on you after you committed the offense — flogging and karet, both. But there cannot be two liabilities for one offense. When we say that a person is not liable to two wickednesses, the meaning is that we do not impose two punishments on him for the same offense. Not just that we don’t impose them in practice, but that he does not incur two punishments for the same offense. And here the Baal HaMaor would tell us that if only flogging exempts from karet and not repentance, then I would not say this is not two wickednesses. Why? Because he is liable to both flogging and karet. He incurs both. True, if he is flogged, that exempts him from karet — fine — but if you ask what he is liable to, he is liable to flogging and karet, and there are not two wickednesses. I’ll give an example: you know that in Bava Kamma 35 and in other parallels, the school of Hezekiah says that even one liable to capital punishment unintentionally is exempt through “the greater penalty applies.” Yes, someone who committed an offense carrying the death penalty, but did it unintentionally, so he is not executed. And at the same time he also incurred monetary liability or flogging. The capital liability for an unintentional act exempts him from the other punishment; even in such a case there is “the greater penalty applies.” Now here he is not actually executed — he acted unintentionally — but the very fact that for such an offense one is liable to death is enough for us to say “the greater penalty applies.” Meaning, he is not liable to the second punishment. What does that show? That when “the greater penalty applies,” the more severe punishment exempts from the lighter one not in the sense that if you actually received it, you are exempt from the lighter one. Rather, the very fact that two punishments rest on you for this offense cannot be. Only the more severe punishment rests on you. And if you acted unintentionally, you will be exempt from it. But “the greater penalty applies” is a statement about what punishments, in principle, rest on you — not what we will actually do to you. It does not depend on whether we carry it out in practice. Rather, the question is whether two liabilities can be imposed by virtue of one offense, and the answer is no — only the more severe one is imposed. Now what happens if I do not actually receive the more severe one? Will I still be exempt from the lighter one? The answer is yes, I will still be exempt from the lighter one. Okay? So basically what I’m saying is that the dispute between the Baal HaMaor and the Rambam may be over how to understand “the greater penalty applies” when one cannot incur two wickednesses. The Rambam understands that if the flogging exempts me from karet, then “the greater penalty applies” is irrelevant here. It’s not two wickednesses, even without repentance exempting from karet, because once I was flogged there is no karet on me, so I am never actually liable to two punishments. The Baal HaMaor says — that is, the Rambam thinks this depends on actual punishment: you cannot actually punish him with two punishments. But if in practice that won’t happen, because once he is flogged, the karet no longer applies to him, then there is no issue of two wickednesses, because in practice there are not two wickednesses here. The Baal HaMaor would say no, not at all. Two wickednesses means that both things obligate you. It is not related to what you will receive in practice. Therefore even if once you are flogged that exempts you from karet, it is still two wickednesses. And it is two wickednesses because two liabilities are not imposed on you; therefore in principle one could not flog you in such a case, and in any case you would not be exempt from karet either. Okay? Now the Ramban himself resolves the difficulty differently, because he does not agree, so he says: Rather, Rabbi Akiva holds like Rabbi Hanania. And this is the difficulty: why are those liable to karet included in the forty lashes? Why don’t we say he should not be flogged and should remain with the karet he bears, just as we do with those liable to execution by a religious court, where anyone liable to two deaths is judged by the more severe one — and here karet is more severe. Yes, what exactly was Rabbi Akiva asking? Rabbi Akiva asked: how can you obligate flogging in a case of karet? There are both flogging and karet, and that is two wickednesses. And to this he answers that repentance exempts from karet. But that is the question. The Ramban explains that the question is different from what we think. In other words, the question was: he is liable both to flogging and to karet, so in principle the flogging should be canceled and he should remain with karet, just as with those liable to execution by a religious court, because karet is more severe, okay? Therefore you cannot flog him. That was the question. And to that they answer: therefore we judge him by flogging, because if he repents, the heavenly court forgives him the karet; and since so, the punishment of flogging is primary, because karet is not a complete punishment, and flogging is more severe than it. He is judged by the more severe one, because karet is lighter, since it is possible that it will not take effect, for the heavenly court may forgive him.
[Speaker A] What does that mean? He’s saying this:
[Rabbi Michael Abraham] what Rabbi Akiva brought — that if you repent you’ll be exempt from karet — does not come to say that there are not two liabilities here because karet is not considered a punishment. That is not Rabbi Akiva’s explanation. Rabbi Akiva’s explanation is: we are discussing which is more severe, karet or flogging, right? Because when “the greater penalty applies,” he is judged by the more severe one. Which is more severe? The initial assumption was that karet is more severe. Then we asked about Rabbi Akiva: so how can you obligate flogging in a case of karet? “The greater penalty applies” — karet is the more severe one. The Talmud answers: no, karet is the lighter one. Why? Because the heavenly court will forgive him if he repents. So you see that this punishment is an uncertain punishment, and therefore it is considered lighter. It’s simply an indication that it is lighter. So what if it is lighter? Then at the moment the liability resting on him is only the flogging, not the karet, right? It is only one punishment. What he is saying, I mean, his claim is that the fact that repentance exempts from karet is not, as we explained before, that if repentance exempts from karet, then that means it is not two wickednesses because karet is an uncertain punishment and therefore it is not considered two wickednesses, so you can still flog him. No. He says that the fact that repentance exempts from karet is proof that between flogging and karet, karet is the lighter one, not the more severe one. And then what? Then once both karet and flogging apply to him, he is really liable to flogging because karet is the lighter one. Once he is liable to flogging, therefore those liable to karet are indeed flogged.
[Speaker A] And then he says, in effect—
[Rabbi Michael Abraham] that according to Rabbi Akiva, flogging can exempt from karet even without repentance, like Rabbi Hanania, and repentance can also exempt from karet even without flogging — both can happen. Okay? Where karet exists and flogging exists, if you were flogged, that will exempt you from karet even if you do not repent. But let’s say nowadays, when there is no religious court able to flog, then Rabbi Akiva says repentance will exempt you. There, if you were flogged, even without repentance you could be exempt. Today, only if we repent can we be exempt, because we have no option of being exempted through flogging; there is no court that flogs. Okay?
[Speaker A] Now,
[Rabbi Michael Abraham] Maimonides in his commentary on the Mishnah says: “We have already explained that flogging together with repentance will atone for karet.” Flogging together with repentance.
[Speaker A] Because—
[Rabbi Michael Abraham] because flogging together with repentance will atone for karet. What does that mean? It is certainly not like Nachmanides, right? Because Nachmanides says the flogging atones and repentance atones, each independently. Okay? But Maimonides says no, you need both in order to atone for karet. Okay? With the Baal HaMaor there is room to hesitate. According to the suggestion I made earlier, it may be that the Baal HaMaor agrees with Maimonides. He too says that flogging and repentance together atone for karet. And both Rabbi Hanania and Rabbi Akiva agree to that. But according to the way Nachmanides understood the Baal HaMaor — then no. According to the way Nachmanides understood the Baal HaMaor, flogging alone also atones for karet. And perhaps Rabbi Akiva says flogging plus repentance or something like that. But flogging alone exempts; it exempts from karet. So it follows that at least according to Maimonides, repentance alone does not exempt from karet, and flogging alone does not either — you need both together. What he is really saying — what I suggested about the Baal HaMaor—
[Speaker A] is—
[Rabbi Michael Abraham] probably how Maimonides would learn the Talmud. Both Rabbi Hanania ben Gamliel and Rabbi Akiva probably say that flogging plus repentance exempt you from karet. And therefore Rabbi Akiva is indeed not brought as one of those who disagree with Rabbi Hanania, because he agrees. Even when Rabbi Hanania says that flogging exempts from karet, he means flogging plus repentance, not flogging alone. Now this very dispute, this very dispute, is connected — I mentioned in the previous lecture that in Safed in the sixteenth century there was a controversy over renewing ordination, yes? I said that in the responsa of Maharlbach, in his final responsum, there is a pamphlet on ordination, and there he brings that the sages of Safed ordained Rabbi Yaakov Beirav, and afterward he ordained five of his students, I mentioned that, and the sages of Jerusalem objected to the matter. Now, the motivation, the motivation of the sages of Safed in renewing ordination was to exempt people liable to karet from their karet. The conversos of the expulsion from Spain and others like them who committed offenses incurring karet — they wanted there to be an option to flog them so that the flogging would exempt them from karet. And Maharlbach says: what do you want? You don’t need flogging for that. Let them repent and they will achieve atonement. Repentance can atone for them from karet; they do not need flogging. There is no need to establish for that purpose an ordained court that will flog them. Even without that, if they repent, everything is fine. What is the dispute? The same dispute we saw here, right? According to Maimonides, the sages of Safed are right. Why? Because there is no option of simply repenting and being exempt from karet. You need both flogging and repentance. Therefore the sages of Safed are right: one must establish an ordained court that will flog the offender. And he will repent, and together that will exempt him — or separately, according to Rabbi Hanania ben Gamliel perhaps even separately. But in any case, flogging is needed in order to be exempt. Maharlbach presumably learns like Nachmanides in Milhamot, where Nachmanides says: what are you talking about? Flogging alone exempts, but repentance alone also exempts. Therefore there is no need to establish an ordained court, because you are not looking for channels that obligate — you are not looking for channels that obligate the person in order to spare him from repenting. On the contrary, let him repent in order to be exempt. Why should we worry about creating for him an atonement channel that does not require him to repent? We have no such goal. So as long as he has the option of being exempt from karet through repentance, we’re fine, we’re covered. So in the end, the dispute over ordination is really the dispute among the medieval authorities (Rishonim) in our topic. Okay. Good. So that is a completion regarding the previous lecture. Now I want to move on to the next issue. Our next issue emerges from the passage we have learned until now. And that is the question: what is the status of repentance in an earthly religious court? We saw that the Talmud indicates that for punishments imposed by an earthly religious court, repentance does not help to exempt from them — flogging, execution by court, and the like. For punishments of the heavenly court, like karet or death at the hands of Heaven, if he repented he is exempt. And the question — and then there are practical implications regarding flogging, whether it is two wickednesses or not two wickednesses — now I’m leaving that aside. I’m now speaking about the prior assumption. The prior assumption says there is a difference between punishments of a religious court and punishments from Heaven. For punishments from Heaven, repentance exempts from the matter; for punishments by human hands, repentance does not exempt from the matter. So now I’ll try a bit to explain and understand this difference. The Torah indeed imposes various punishments on us for different offenses. I spoke about this in the previous lecture: there is flogging, death penalties, fines, and so on. For every offense a person commits, of course he has to repent in order to atone for the sin. At first glance, we know that repentance helps us erase the sin, right? After we repent, we are accepted like a new person; repentance out of love turns intentional sins into merits. Meaning, we become completely righteous. If that is so, then I would expect repentance also to exempt him from punishments imposed by a religious court. A person ate pork and incurred forty lashes — let him repent and be exempt from his forty lashes; what is the problem? If he repented, then his sin was forgiven. Once the sin was forgiven, what are you punishing him for? So why does the Talmud here assume that for punishments of a religious court, repentance does not help?
[Speaker A] Isn’t the question basically that the court doesn’t know the depth of the repentance? What? The court doesn’t know how deep the repentance is.
[Rabbi Michael Abraham] Okay, so that is one possible explanation. In my opinion it is not correct, but we’ll get to it in a moment. That is definitely one of the possibilities raised by the commentators. I’ll just preface and say that the accepted view, the accepted view, is indeed that repentance does not exempt from punishments of a religious court, as appears from the plain sense of the Talmud here. But we will see later that perhaps repentance does exempt from punishments of a religious court. The question is what kind of repentance, and we’ll talk about that later. But I’m starting with the accepted view. The accepted view is that repentance does not help with regard to punishments of a religious court, as appears in the plain sense of the Talmud here. Now here the explanation that Shmuel raised before is the natural one — the explanation that says: how can a religious court exempt him from punishment because he repented? Does the court know how to read what is in a person’s heart? It cannot know whether he genuinely repented or not. So regarding that I want to claim that this is not a plausible answer, not a plausible explanation. Why not? Because we find in quite a few places in Jewish law that the religious court does indeed have to address the question whether so-and-so repented or did not repent, and it makes a judicial decision about it. Meaning, the assumption of Jewish law is that the religious court can determine whether a person repented or not. Let’s look at an example. In the Shulchan Arukh, Choshen Mishpat — we’re now going to look at section 34. “A thief and likewise a robber are disqualified from testimony from the time he stole or robbed, and even though they returned what they took, they remain disqualified until they repent.” Meaning, with regard to disqualification from testimony — because we disqualify wicked people from testimony, okay? Such as a thief, a robber, or different offenders — they are disqualified from testimony. But they can return to fitness. How? Returning the money is not enough. They have to repent. It’s an interesting question whether repentance helps even without returning the money, or whether both are needed, but for now I’m saying that in any case repentance is required. Now according to Shmuel’s thesis from before, you couldn’t write such a law. The fact that this law exists means that Jewish law assumes the religious court can determine whether the person repented or not. How does the court determine that he is fit to testify? It says: because he repented. What do you know about what is going on in his heart? How do you know? Likewise, the Rema there in סעיף 22: “Informers, violent people, heretics, and apostates to idol worship are lower than idol worshipers and are disqualified from testimony” — that is the Shulchan Arukh. The Rema says: “And even if the person informed against forgave him, he remains disqualified until he returns in repentance.”
[Speaker A] And later he also says—
[Rabbi Michael Abraham] “An apostate who retracted and accepted repentance upon himself is immediately fit, even though he has not yet acted.”
[Speaker A] Since he accepted it upon himself—
[Rabbi Michael Abraham] Repentance means he already returns to his kosher status, okay? The same thing in סעיף 28 and 29: if two people testified about someone that he is disqualified because of one of these transgressions—transgressions for which one receives lashes, which are transgressions that disqualify a person from testimony—and then two others came and testified that he retracted and repented, or that he was lashed, then he is fit. Here, incidentally, both lashes and repentance help—either one of the two options. Anyone who became liable for lashes, once he was lashed in religious court, returns to his prior status. But other people disqualified from testimony, who are disqualified because of money they extorted or stole—where there are no lashes, because this is a prohibition linked to repayment—even though they paid, they still require repentance, and they remain disqualified until it becomes known that they have turned back from their evil way. And then he spells out: from when is a lender with interest considered to have returned, and so on—he gives details of what counts as full repentance. So what do we actually see? That repentance definitely does receive treatment by an earthly religious court. The judges can determine that so-and-so repented, and the practical implication is that he returns to fitness for testimony. What is apparently the explanation for this, yes? The Sema, incidentally—maybe before that—the Sema there in subsection 1 brings the source from the passage in Makkot that we saw. Yes: once he was lashed in religious court, we derive in Makkot 23 from the verse, “and your brother shall be degraded before your eyes”—immediately once he has been degraded and lashed, Scripture calls him “your brother.” Exactly the same derivation that Rabbi Chananiah ben Gamliel makes regarding karet that comes from Heaven: he is considered your brother and they forgive him—and an earthly religious court also forgives him. Since he was lashed, then he is repentant and he returns to… no, he is not repentant, sorry—since he was lashed, then he returns to his fitness for testimony. Even without repentance, okay? The difference between these two things, I think at least—one moment.
[Speaker A] There is—
[Rabbi Michael Abraham] In the Gemara in Sanhedrin, where they discuss people disqualified from testimony… the Gemara in Sanhedrin that discusses the wicked who are disqualified from testimony makes a distinction between two kinds of wicked people: there is a wicked person of monetary violence—someone whose transgressions involve desire for money, a robber, yes, maybe even someone who does not repay a debt, a thief, and so on. So that is someone whose transgression has to do with desire for money. And there is a wicked person who is not a wicked person of monetary violence, which is anyone who committed a transgression for which one is liable for lashes. Okay? And both are disqualified. Now, several later authorities—yes, the Ketzot for example in several places, the Meshovev, and in Ketzot, and also the Netivot on this matter—say that they discuss the question whether the disqualification of a wicked person is because he is suspected of lying, or whether it is an intrinsic disqualification. Do I not accept his testimony because I cannot believe him—maybe there is concern that he is lying—or does the very fact that he is wicked disqualify him, not because I suspect him of lying, but rather wicked people are disqualified from testimony by an intrinsic disqualification? Now, the Ketzot wants to argue that a wicked person of monetary violence is a suspicion of lying, because you see that the person is willing to commit transgressions in order to gain money. So you are concerned that when he testifies too, he actually received money to give false testimony or something like that, and therefore there it is suspicion of lying. In contrast, a wicked person who is not a wicked person of monetary violence is disqualified by an intrinsic disqualification. The very fact that he is wicked—we are not prepared to accept him as a witness. It seems to me that a possible explanation for this is that we are not prepared to give him some kind of public standing, yes? A person who committed a transgression, and especially of course a transgression that carries lashes—that means he was lashed before the eyes of the whole public—this is something public. If such a person comes and testifies, and on the basis of his testimony we execute someone or extract money, that means we rely on him—that is, we give him some kind of standing, some kind of honor—and that the Torah is not prepared to do. It is not because he lies; there is no concern that he lies. We are not prepared to rely on him in a legal ruling as a witness. He is not a witness on whom I am prepared to build a legal ruling, because I am not prepared to recognize his public standing or give him public prestige or something like that. It seems to me that this is a possible explanation for this intrinsic disqualification. Now, with a wicked person of monetary violence, in order for him to return to fitness—suppose he were lashed; usually a wicked person of monetary violence is not lashed, because this is a prohibition linked to repayment, and once you repay, you do not get lashes. But suppose he were lashed, okay? Would that return him to fitness for testimony? There is no logic in that. Why? Because the problem with him is that he is suspected of lying. So what does it help me that he was lashed? If he repents and becomes righteous, then okay, then the concern that he will lie has passed, right? Because now he is a good person. Fine. So repentance can restore a wicked person of monetary violence to fitness for testimony. But lashes, or some other punishment, or I do not know, something like that—would not help there. Suppose a wicked person of monetary violence returned the money: if he returns the money, yes, so what? Has he returned to fitness? Of course not. After all, he is suspected of lying. He returned the money because they caught him; the court caught him and obligated him to return the money. They do not lash him because it is linked to repayment—or linked to a positive commandment, maybe we will talk about that later—but never mind, it is exempt from lashes. But he must return the money. He will return the money as obedience to the court; the court obligated him to return the money. He did not repent. So someone like that, if he was suspected of lying, is still suspected of lying. So why in the world would returning the money make him fit for testimony? There is no logic in that. In contrast, a wicked person who is not a wicked person of monetary violence is disqualified from testimony not because we suspect him of lying. He is disqualified because he is wicked, because of his public status. Okay? That person, once he was lashed, he returned to—he paid his debt to society, as people say today. Okay? He paid his debt to society, and therefore there is no formal problem with him. Concern about lying was not there even beforehand; we do not suspect him of lying. But we are not prepared to give a criminal public standing. Once he was lashed, he stops having the status of a criminal. Therefore lashes can help there. Okay? But that is of course specific to fitness for testimony. It has nothing to do with heavenly law and when he is exempted from karet and things of that sort. Specifically regarding fitness for testimony: if the problem is concern about lying, then you need to solve the concern about lying in order to make him fit for testimony. If the problem is his criminal status, then you need to solve the problem of criminal status. And those problems are solved differently. To solve the problem of concern about lying, I need repentance. To solve the problem of his public status, even if he was lashed that is okay. It may also be that if he repents that would also be okay. I do not know, maybe. It depends how I relate to such a person who repented but has not yet been lashed in the eyes of the public. The lashes he will have to take. But maybe I already say, fine, but such a person I am already prepared to let testify, because publicly he is already purified. Okay? The punishment he still has to receive, the punishment from the court, but publicly he is still purified. So there is room to say that repentance alone would help, but there is also room to say that it would not. He needs to be lashed, and then he stops having the status of a criminal, and only then does he return to fitness.
[Speaker C] But in the case of someone suspected not because of monetary violence but because of wickedness, for example the Gemara says that if he is suspected regarding sexual prohibitions, then he is fit, but he is disqualified for testimony about a woman.
[Rabbi Michael Abraham] Disqualified for testimony in the matter regarding which he is suspected.
[Speaker C] So it sounds like it is not because of status, because of the status of wickedness, but rather a kind of substantive reason. That is, a person who is suspected regarding sexual prohibitions, as with money, we are afraid he will involve himself with matters concerning women.
[Rabbi Michael Abraham] No, no, the opposite. If he is suspected regarding sexual prohibitions, then what does that have to do with it? He is testifying about this man and this woman. What does that have to do with anything?
[Speaker C] I think there is a reasoning like that—I do not know whether it is in the Gemara or somewhere else—that once he testifies about a bill of divorce, he has an interest that they should get divorced so that he can take that woman, or in marriage proceedings, that is…
[Rabbi Michael Abraham] Fine, if he is suspected regarding sexual prohibitions, then he does not need the divorce bill in order to take her—he does it even without a divorce bill.
[Speaker C] I am not saying this is my reasoning; I think this is some reasoning that exists, maybe even in the Gemara.
[Rabbi Michael Abraham] I do not know it, and it does not sound plausible to me. Someone suspected regarding a matter may not judge it and may not testify about it. This is a principle that, in my view, actually joins the other side of the equation—the side of status. That is, someone who is suspected regarding sexual prohibitions, I am not prepared to build a legal ruling in the area of sexual prohibitions on the basis of his testimony. Not because of suspicion of lying, but because of the public appearance of such a thing. Think about, I do not know, a pimp, yes, a trafficker in women, coming to testify about some woman that she committed adultery. Now, he is not suspected of lying; he just works in this for a living, as they say. He is not a liar, yes? Something he does not need for a living he does not do. Okay? Fine, but we are not prepared—the public appearance of such a thing—we are not prepared to build a legal ruling in the area of sexual prohibitions on the testimony of such a person. Incidentally, here we are talking about someone suspected, not a criminal. Someone suspected regarding a matter may not judge it and may not testify about it. If he is a criminal with witnesses, then he is disqualified for everything, not only for the matter regarding which he… so this is a different topic. Just to clarify the point, yes? And earlier I was speaking about a wicked person, not someone suspected. About a wicked person. That is, a wicked person is someone who is disqualified for all testimony, not only for his own subject. Someone who was not convicted as wicked but is only suspected—there are no witnesses, not two witnesses, but only one witness, or a rumor emerged; there are all kinds of ways someone becomes suspected. Once you are suspected but do not have the status of a wicked person, then in principle you are fit for testimony—but for that same matter, he may not judge it and may not testify about it. For that matter regarding which you are suspected. And therefore in my opinion it is the opposite: this is exactly the point, that there is no suspicion of lying here. If there were suspicion of lying, I would suspect him of lying everywhere. That means this is public status, not suspicion of lying.
[Speaker C] And I also want maybe to suggest on the other side why in the area of, say, money, where we want—repentance sounds more logical to us than, for example, the opposite short argument, the problematic one. How could it be that other things would solve it aside from repentance, as long as we want the person to return to what he was before, as long as we want to know with certainty that he is proper?
[Rabbi Michael Abraham] I said—who said they would help? The Shulchan Arukh writes that it will not help. Even if he returned the money—only repentance.
[Speaker C] So I am saying maybe returning the money is the repentance here, because what is repentance? Repentance is admission of the sin… and…
[Rabbi Michael Abraham] That is exactly what he says. Returning the money does not help without repentance. What does that mean? It means returning the money can also happen without repentance, and then it does not help.
[Speaker C] If it comes together with repentance, then it helps.
[Rabbi Michael Abraham] But returning the money itself—is that not repentance? Is it not one of the components of repentance? Admission of the sin… no, it is one of the components of repentance, but returning the money by itself is not repentance.
[Speaker C] If the court forces you to return stolen property, are you called a penitent? Of course not.
[Rabbi Michael Abraham] You returned it because the court forced you. That is basically parallel to punishment; it is not parallel to repentance. They do not force you to confess. If they force you to confess, then yes, because here there is actually no confession. Even confession is not relevant. I am saying: if he himself returns the money as part of a process of repentance, then of course everything is fine. And obviously as part of repentance he has to return the money. But that is a different kind of returning money. The Shulchan Arukh is talking about a case where he returned the money and did not repent, and there he says it does not help him. How can there be such a case? When he returned the money by court order, not as a process of repentance. Okay? Now I will say more than that. The wicked person disqualified from testimony is only someone wicked through a transgression for which one is liable for lashes, right? Why? What is the difference? Why is a wicked person through a transgression for which there are no lashes—because it is a prohibition linked to a positive commandment, or linked to repayment, or a prohibition without…—why is he not disqualified from testimony? Is he less wicked? There are all sorts of reasons why he is not liable for lashes, but he does not seem less wicked. Why is he not disqualified from testimony? In my opinion this is a matter of public appearance. That is, it cannot be that a person stands at the witness stand—and a trial is something public, the publicity of a trial—so he stands at the witness stand, we convict someone on the basis of his testimony, and tomorrow morning he goes to be lashed before all Israel in court. That same person on whom you based your ruling. That is not plausible. But if there is a person who is not punished, the very fact that he is wicked or a criminal—fine, he is a criminal—but there is no public appearance to that. He is not lashed in public. A large part of the public may not even know that he committed a transgression. It is not something publicly known, and therefore he is not disqualified. To me, that is another indication that the disqualification here is rooted in public appearance and not in considerations of credibility. I do not think that someone who ate pork and is liable for forty lashes is more suspected of lying than someone who left over sacrificial meat from the Passover offering. That is a prohibition linked to a positive commandment, and therefore one is not lashed for it. Because “you shall burn what remains in the fire,” and “whatever remains, burn in the fire”—so “burn in the fire” is a positive commandment that detaches the prohibition; therefore one is not lashed. So one is not lashed—so what? Does that mean that someone who left over the Passover offering is less wicked than someone who ate pork? What is the difference? Both violated a prohibition. The fact that here there are lashes and there there are not is due to a technical consideration. Because here it is corrected by a positive commandment, and here it is corrected by lashes. So what? What does that have to do with the question, as long as you did not correct it? So why should he not be disqualified from testimony in exactly the same way also regarding the Passover offering? Therefore, in my opinion, this is public appearance and not concern about lying. Now there is another example: the Mishnah in Yevamot. The Mishnah in Yevamot says that a mamzer son exempts his father’s wife from levirate marriage, and he is liable for striking him and cursing him.
[Speaker C] Here—
[Rabbi Michael Abraham] We are talking about Reuven married to Rachel, and Reuven—
[Speaker A] Married to Rachel—
[Rabbi Michael Abraham] And he had relations with another man’s wife and fathered a child with her. So in effect Reuven has a child not from Rachel, and he is a mamzer. Now Reuven dies. Is Rachel obligated in levirate marriage? The answer is no. Even if the son is a mamzer, the woman is not obligated in levirate marriage. And this mamzer son is also liable for striking and cursing the father. Now the Gemara there asks: but the father does not act as “one of your people,” right? He had relations with another man’s wife. He is wicked; he does not act as one of your people. So why is the son liable for striking him? Interpersonal transgressions are only toward someone who acts as one of your people. Someone who does not act as one of your people—there are no interpersonal transgressions toward him. This is an interesting comment, by the way. Striking one’s father is considered an interpersonal transgression. According to this, I am not at all sure I would classify it that way. As far as I remember, the Minchat Chinukh actually says no—that this is a transgression between man and God. In any case, from here it appears otherwise.
[Speaker A] So Tosafot there—
[Rabbi Michael Abraham] Asks: but it says in the chapter “Those Who Are Strangled” in Sanhedrin that in every case a son is not made an agent for his father to strike him or curse him, except for one who incites to idolatry? A son cannot be the agent of the court who goes and lashes his father for some transgression the father committed, except for one who incites to idolatry. If the father is such an inciter, then even his son can be the court’s agent to lash him. So we see that the son cannot be an agent for his father to strike him or curse him. Now when you go to strike and curse the father—or at least… what does that mean? That the father committed a transgression for which one is liable for lashes, right? Because the fact is that the son is the court’s agent to lash him, okay? So what does that mean, essentially? That the father is wicked. And nevertheless the Gemara says that the son is not made an agent for his father to strike him and curse him. Fine. So the Gemara says there: that is when he repented. What does that mean? If the father repented, then the laws return, and I cannot strike and curse him. Fine? Now we see two things here. That if the father repents, according to Tosafot at least, if the father repents: first, it is forbidden for the son to be the court’s agent to lash him; second, the father himself is still liable to lashes—there is some other court agent who will lash him, right? And his repentance helps in this respect, that his son again becomes obligated in his honor and reverence, but it does not help to exempt him from the court punishment that he owes. Therefore the court will send another agent to lash him, okay? So what does this actually mean? It basically means that a court can indeed determine that a person has repented. Because in fact we judge the child according to the question whether his father repented or did not repent. It may be that the child will be lashed, and it may be that he will not be lashed—or even executed for cursing his father, okay? So a court can determine whether a person has or has not repented, okay? And at the same time, in that very same Gemara—and that is what is nice about this Gemara, or really this Tosafot—that in that very same Gemara we see that although the court can determine whether the person repented, still repentance does not exempt him from punishment. And in that same Gemara we see this. So this is not a contradiction from one Gemara to another. Rather, that very Gemara itself says that although the court can determine who repented and who did not repent, repentance still does not exempt from court punishments. Or in other words, Shmuel was not right earlier when he said that repentance does not exempt from court punishments because the court cannot determine whether there was repentance or not. The Holy One, blessed be He, can, but an earthly court, human beings, cannot determine. Not true. Here we see that it says they can determine, and nevertheless it does not exempt him. Now we need to understand: what they can determine is at pretty crazy levels. You might say, okay, maybe the threshold is too high. That is, in order to punish on that basis you need a very unequivocal determination. And you cannot have an unequivocal determination here because the court cannot be sure. It has indications that he repented. So regarding considering the father a penitent, fine; regarding restoring him to fitness for testimony or something like that, fine. But regarding executing the father or lashing the father or something like that, repentance will not exempt him, because for that you need a higher threshold of decision. That is a problematic argument, problematic in two ways. First, because actually the opposite: to exempt from death I would set a lower threshold. It is enough for me to have a doubt that maybe the father repented, and already I cannot execute the father. Because the death penalty is so severe, that should actually lower the evidentiary threshold when I come to determine whether the person repented. Even if I have the slightest concern that he repented, that is enough for me not to execute him or not to lash him. Therefore the reasoning points in the opposite direction. That is, if you are talking about punishments, specifically there I would set a low threshold; once you have some indication that there is doubt whether the person repented, then you cannot punish him even if you do not know with certainty. Therefore this explanation is implausible—that they do not know with certainty. Let me say maybe more than that. Beyond that, when I determine that the father repented, and therefore the son is obligated in his honor, that has an enormous practical implication regarding cursing the father: “one who curses his father and mother shall surely be put to death”—
[Speaker A] We execute on that basis.
[Rabbi Michael Abraham] So there is no problem executing a person on the basis of a court determination that another person repented. That is, the court is so certain in its ruling that so-and-so repented, that this is enough even to execute his son if he curses him.
[Speaker A] So understand that there is complete trust here—
[Rabbi Michael Abraham] Complete trust in the court’s ability to determine that a person repented. And therefore this whole discussion—that he is not exempt from court punishments because who knows whether he repented or did not repent—is, in my opinion, incorrect.
[Speaker A] There is one more difference. Yes. The difference is that all of court law is law administered by human beings, whereas regarding karet these are heavenly laws, so it is not certain that a human decision can determine things for Heaven.
[Rabbi Michael Abraham] No, it does not determine for Heaven—it determines—
[Speaker A] For human beings.
[Rabbi Michael Abraham] Because if he repented, then he is exempt from lashes.
[Speaker A] But regarding karet we say he is exempt…
[Rabbi Michael Abraham] No, leave karet aside; I am talking about lashes. Yes—
[Speaker A] So that is regarding human law, right.
[Rabbi Michael Abraham] Exactly. So regarding human law, why does it not exempt? Human beings determine that he repented, so therefore we should not lash him or should not execute him. What is the problem? If the court can determine that he repented, and to the extent that we will punish someone else with death on the basis of that determination, then why is that not enough to exempt this person who repented from the death penalty? Or from money, or whatever it may be. Court punishments, not heavenly punishments. Maimonides in the Laws of Rebels also writes: one whose father and mother were complete wicked people and transgressors, and even if their sentence has already been concluded for execution and they are being taken out to be executed, it is forbidden to strike them or curse them. And if he cursed them or injured them, he is exempt. And if they repented, then he is liable and is executed on their account, even though they are being taken out to death. That is, they are wicked, fine, but if they repented, then very good. That means he is executed on the basis of the determination that they repented—notice that. We execute the child who cursed his father and mother if the court ruled that his father and mother repented. So you cannot say that we do not have complete confidence in this ruling that a person repented. The Or Sameach there, on Tosafot, writes: “It appears to my humble opinion that even if we do not know whether he repented, it still makes sense that it is forbidden to strike him or curse him, for perhaps he thought thoughts of repentance in his heart, as we say in Kiddushin: regarding one established as wicked who betrothed a woman on condition that he is completely righteous, we are concerned for the betrothal, lest he thought thoughts of repentance in his heart. And here too it is the same.” And he argues that even if there is doubt whether the father repented, it is already forbidden to strike and curse him. Therefore he does not actually have to repent; you are forbidden to curse him even without knowing that he repented. Why? Because there is concern that maybe he repented. But in essence, if he did not repent, then there is no prohibition on cursing and striking him. Only because I do not know this, because we have no knowledge of what is going on in a person’s heart, therefore I need to be concerned, and you cannot strike him or curse him. Obviously we will not execute you on that basis, because we do not know that the father repented, but you are forbidden to do it. That is, a mere concern is enough to exempt a person from punishment. A mere concern is enough. So when I say that the court determined that so-and-so repented—even suppose the court cannot know this with certainty. Above we saw that this is not true; it can know with certainty. But even suppose not—what, does it not at least create a doubt? The court says that this man appears to us to be a complete penitent. Is that not enough at least to create a doubt, so that we should not execute him because of the doubt? “And the congregation shall save”—after all, we are supposed to seek every possible angle not to execute him. So here you have a real doubt that maybe he is exempt from death.
[Speaker C] So that is not enough even to create doubt?
[Rabbi Michael Abraham] This whole story, in my opinion, cannot be because we are talking about an earthly court and human beings cannot determine whether there was repentance or not. That cannot be the explanation. Maimonides also writes this way regarding the condemned city—another example: “And what is the law of the condemned city? When it is fit to become a condemned city, the Great Court sends and investigates and examines until they know by clear evidence that the entire city or the majority of it was led astray and returned to idolatry. And afterward they send them two Torah scholars to warn them and bring them back. If they return and repent, good; and if they persist in their folly, the court commands all Israel to march against them as an army, and they besiege them and wage war against them until the city is breached.” The Raavad comments: “Afterward they send them two Torah scholars to warn them and bring them back,” etc. Says Avraham: it is a good thing that repentance should help them, but I have not found repentance to help after warning and after the act. The sending of the two Torah scholars is not in order to bring them back in repentance; it is to warn them, because without warning you cannot apply the law of the condemned city to them. Maimonides says no: these Torah scholars also have to bring them back in repentance, and if they return in repentance, then they really will be exempt. The Raavad says: what are you talking about? Where did you ever find such a thing? Repentance does not help to exempt from court punishments, okay? The Migdal Oz there, for example, says… And I say that there was a scribal error in his book. I already checked a copy corrected in Maimonides’ own handwriting and signature, for Maimonides signed it, and it does not say there, “afterward they return.” That is, this whole business of “afterward they send them two Torah scholars to warn them”—that yes, to warn them in that sense, because without that there is no punishment. But this whole matter of “to bring them back, and if they returned and repented, good”—that part does not appear in Maimonides. Because indeed, as the Raavad says, repenting does not exempt you from court punishments. The condemned city is a court punishment. Well, to my mind the difficulty is not so terrible, because what do you mean—true, maybe one can say that it is a court punishment, but first, I am not sure this is called a court punishment at all. Not at all sure. That is, it may be that the law of the condemned city is some kind of social law. If there is a city that was led astray to idolatry, all Israel goes out against it in war. It is not that the court sits, judges them, and administers one of the four court-imposed death penalties. They go out against them in war and kill them in war. That is not a death liability of one of the four court deaths. It may be that this does not fall under the category of ordinary court punishments, so I am not sure that this is such a strong difficulty on Maimonides. Another point: even if it were a court punishment, a court punishment on an entire city, one can understand that here there is an exception. And if that city repents, then perhaps we waive it for them. That is, this is in any case a very exceptional topic, to the extent that the Gemara says that a condemned city never existed and never will exist—yes, like the stubborn and rebellious son in the same passage. That is, there is something really very exceptional here. So it may be that in this exceptional case it was indeed newly taught that repentance helps. What is the source for that? Good question. In Maimonides it is not clear what the source is.
[Speaker C] Logic also says so, because in a condemned city it is enough that there be testimony about the majority in order to kill all of them, even the minority about whom you do not know. So that joins in.
[Rabbi Michael Abraham] Exactly, and therefore I am saying this is an exceptional punishment; it is not… It is certainly possible that here there is some desire to exempt us from carrying out this punishment whenever possible, and if they repent, then certainly we exempt them. I might even think now of another formulation. It may be that when we go out against them to war, we are actually an instrument in the hand of the Holy One, blessed be He. This is a punishment at the hand of Heaven, not at the hand of man. The Holy One, blessed be He, tells us: go kill them; this is the heavenly punishment I impose on them. And if so, when they repent, heavenly punishments are indeed canceled by repentance. Therefore we do not go out against them and kill them. I do not know—maybe that too is a possible formulation.
[Speaker C] And really, the Migdal Oz—maybe it is like the law of a pursuer, where you kill the pursuer because he is on his way to become liable in court, so you are basically implementing the court’s ruling. Here too, people who worshiped idolatry have in any case already become liable for a court death penalty, so you yourself are like dealing with a pursuer of idolatry and not murder or something like that.
[Rabbi Michael Abraham] No, but what about the minority who did not worship?
[Speaker C] Fine, that is the exceptional nature of the condemned city more than anything else.
[Rabbi Michael Abraham] In any event, when the Migdal Oz says yes—what the Raavad says, that we have not found repentance to help after warning and after the act—he says, I already checked the corrected text and it does not say there “afterward they return.” And now the Migdal Oz adds: and even if it did—even if it really were written in Maimonides that afterward they return—I truly wonder why not. Why should it not help after anything in the world? For it is written, “Return, backsliding children,” and as it appears in Rosh Hashanah and in Yoma and in the Jerusalem Talmud, Peah, and so on. Yes, all sorts of Gemaras he brings there that say repentance atones, repentance turns us clean. So he says: leave it aside; I did not find such a version in Maimonides, but even if I had found such a version, what is the difficulty? I simply do not understand why repentance really does not help to exempt from court punishments. And of course he says that he did not find such a version also because—meaning, he has motivation to show that such a version is not there, because we know factually that it is really not true. From where? From our Gemara. Right? In our Gemara we see that repentance does not help with court punishments. Factually that is probably correct. And therefore in Maimonides there is a difficulty from our Gemara, and the Migdal Oz’s answer is that Maimonides in fact does not say that they are brought back in repentance—it is a scribal error. But the Migdal Oz’s question is not on Maimonides but on the Gemara. Why does the Gemara really say that repentance does not help after warning and after the act? Why? What is the problem? Yes, he is alluding to the Gemara in Yoma, this Gemara here, yes. Repentance. Anything up to and including a prohibition: repentance atones. Above a prohibition: repentance suspends and the Day of Atonement atones. If one violated a positive commandment and repented, he does not move from there until they forgive him. Yes. If one violated a prohibition and repented, repentance suspends and the Day of Atonement atones, and so on. That is, in principle repentance helps for everything. Now it is true that some of the later authorities want to argue that this very Gemara is itself the answer to the question. Because this Gemara indeed says that in those transgressions—if one violated a prohibition and repented, repentance suspends and the Day of Atonement atones. If one violated transgressions punishable by karet or court-imposed death penalties and repented, repentance and the Day of Atonement suspend, and suffering cleanses. And the claim basically is that you are not exempt from lashes, because the lashes are that suffering of which we are speaking. After all, we see that in things above an ordinary prohibition, repentance alone does not help. You need the Day of Atonement; sometimes you need suffering. So in the final analysis you are not exempt from court punishments, because court punishments are the suffering, they are the component of suffering in your process of atonement. Repentance helps, but it helps only if there was also suffering. And what is the suffering? The lashes, or the death penalty, or whatever it may be. Now, one could have said: but in ordinary prohibitions it says repentance and the Day of Atonement. It does not say you need suffering in ordinary prohibitions, yet for an ordinary prohibition there are lashes. But maybe it does not say repentance and the Day of Atonement because it is obvious that there is also the court punishment of lashes; there is no need to say it, it is obvious. And after there is the court punishment of lashes, which is the suffering, repentance and the Day of Atonement complete the process. Interesting question what happens today—this is connected a bit to the ordination controversy again. Yes, today we are not lashed. Do repentance and the Day of Atonement help us for prohibitions? Because originally, if you also need lashes, then repentance and the Day of Atonement do not help, and therefore those who wanted to renew ordination wanted to renew a court that would administer lashes so that we too could receive lashes and achieve atonement. That takes us back to the debate we saw earlier. Fine. In any event, up to this point what I have tried to show is that it is not plausible to say that repentance does not help for court punishments because the court cannot determine that a person repented. We saw that we have absolute trust in a court’s determination that a person repented. This is difficult in two ways. First, we saw that we have absolute trust, because in fact we even execute people on the basis of the court’s determination that so-and-so repented. If his son curses him or strikes him, then we execute the son on the basis of the court’s determination that the father repented. That means our trust in the court’s determination is absolute. On the other side of the same coin, suppose that the trust is not absolute. But does it not at least create doubt that he repented? Maybe it creates doubt, and doubt is enough for us not to lash or execute him, because we do not punish in cases of doubt. So either way—if we have absolute trust in the court, and we saw in the Gemaras that we do have absolute trust in the court, then there is nothing to discuss: clearly that is not what prevents us from exempting someone from lashes or death if the court determines that he repented. If I obligate someone to death on that basis, then certainly I can exempt someone from death on that basis. And if for some reason I do not trust the court’s determination, then in such a case it at least creates doubt whether the person repented, and once it creates doubt, that is enough for us not to punish him with court punishments. Now the Chida in the book… that is, one first direction that comes up among the later authorities is indeed the direction that Shmuel suggested earlier: that the court punishes even though the person repented because the court cannot determine. We do not know what is in a person’s heart. So writes the Chida in the book Ein Zokher; he has a long discussion of this there. Also the Arukh HaShulchan. Arukh HaShulchan HeAtid, Maayan HaChokhmah, all kinds of… there are various later authorities who discuss this matter. One could perhaps say that when the court determines that so-and-so repented, the court is using external indications, right? It sees how the person behaves, what he says; it does not know what is in the person’s heart. Okay, now the question is: for what do these external indications help? The external indications help perhaps regarding fitness for testimony. If we see that the person behaves properly, even if inwardly he has not repented, from our perspective what matters is how he behaves. So he returns to fitness for testimony, whether he is a wicked person of monetary violence or not a wicked person of monetary violence. Although about a wicked person of monetary violence we said that maybe it is concern about lying. But if we see that in practice he does not lie, I do not care whether inwardly he has not cleansed himself. If practically we see that he does not lie, that he repented, or that he does not commit transgressions out of desire for money, then he can return to fitness. The same thing regarding the father whom the son honors—the status of the father that determines whether the son is obligated in his honor or not is the status of how the father behaves, not what the father is, not what is in the father’s heart. Now if the father committed a serious transgression and the son was no longer obligated in his honor, and now the father repents in terms of actions, then the court determines that the father is a penitent. The practical implication is, for example, that the father returns to fitness for testimony. Now if the son lashes him or curses him, is that enough to execute the son? The answer is yes, because the son too is supposed to follow conduct, and if the court determined that in practical terms the person is a penitent, that is enough to determine that the son is a criminal on the practical level. In contrast, regarding punishment—oops, we have an alarm here, so I will just say one sentence—regarding punishment, the matter depends on what is going on inside the person’s heart, and that the court really cannot determine, that the person is a penitent in his heart, and therefore regarding punishments it will not help. I just want to stop here because we are already not going to finish by one-thirty; we are already not getting released. Have a kosher and joyful holiday, and goodbye. Have a kosher and joyful holiday.
[Speaker C] Thank you very much, Rabbi, thank you all. Happy holiday.