Topics in Tractate Makkot, Chapter 3 – Lesson 3

[Rabbi Michael Abraham] All right, so we started dealing with the question whether repentance helps—why repentance does not help in an earthly religious court. In other words, from the Talmudic text we saw that this comes up pretty clearly, and then I moved on to discuss the question in its own right, and I already brought—that is, I started with sources in which I show that repentance does in fact play a role in an earthly religious court, whether in the case of an idolatrous city or in restoring wicked witnesses to fitness for testimony and the like. And therefore the first explanation I brought, from the Chida, where he says that repentance does not help exempt someone from punishment in an earthly religious court because the court cannot know whether you really repented or not, since these are things in a person’s heart, and the Holy One, blessed be He, can know, but a court is made up of human beings—they cannot know. So I said that this is not a reasonable explanation, because if that were so, then there shouldn’t be any rulings by a religious court at all with respect to repentance. Because the court should basically say: Look, this is outside my range of competence—I can’t determine whether a person did or didn’t repent—so how can they restore him to fitness for testimony? After all, there the court does determine that the person repented and returns to legal fitness. And if the court can determine in some way that a person repented, then why not here? Why, when it comes to exemption from punishment, does it not help? I said that perhaps in order to exempt from punishment after a person has already become liable, we are not talking about appealing the liability itself, right? He became liable to punishment; he committed the transgression. Only afterward does he repent. After he repents, I say: fine, so what is the point of punishing him with the punishment he incurred after he has already repented and is righteous? In other words, fundamentally there is already a liability to punishment on him. I now want to save him from that liability. So the burden of proof is on me. Meaning, I need to prove that the person repented in order to exempt him from a punishment that was lawfully imposed on him in terms of the transgression he committed, with witnesses and warning and everything required. There it could be that the level of certainty the court can reach regarding repentance is not enough, because the burden of proof is on the person himself—he must prove that he repented. For that you need to convince the court at a high level that you truly repented, and then they exempt you from the punishment you are liable for. But with regard to fitness to testify, there it could be that this does not require the same level of certainty in order to exempt him, because disqualification from testimony is not a punishment. In the simple conception—and there are some discussions about this—disqualification from testimony is not a punishment; it is a legal status. Now, if you really repented and the court concludes that you are already righteous, there is no reason to disqualify you from testimony. Why disqualify you from testimony? The reason has been uprooted. In other words, repentance does not uproot the reason that obligates you to punishment. You are liable to punishment because you committed the transgression; there were witnesses and prior warning and everything. You want to be exempted; to be exempted you need to bring proof that you repented—sufficiently clear proof, that is, enough for the court to be convinced. Here, if you show that there is no reason to disqualify you from testimony—because why disqualify you? You are no longer wicked, what’s the problem? So you do not need to exempt yourself from something there is a reason to impose on you; you simply show that there is no reason to impose it on you. In other words, you are no longer—you are not disqualified. Okay, so in that situation it could be that the lower certainty the court can reach is enough. If the court says: Look, this person now sounds reasonable to me, he repented, on the face of it this seems fine to me—there is no reason in the world to disqualify him. In other words, disqualification from testimony is something that has to be renewed all the time; it is not something that was imposed and now I want to get rid of it. It is something that must be renewed. If the person is wicked, I disqualify him from testimony. Is he not wicked? I don’t need to requalify him for testimony; I simply stop disqualifying him. That’s all. Okay, what? I said, if you are talking on the level of presumption, then yes, and then there is no room to distinguish between testimony and punishment. But I’m saying that if you look at the root of the matter and not at formal levels of whether there is or isn’t a legal presumption, the root of the matter is that punishment is imposed on you because of the transgression you committed, and therefore the punishment is lawfully imposed on you—no one disputes that. Only if you repented do we want to exempt you from the punishment imposed on you. To be exempted, you need to bring proof. Okay, in disqualification from testimony, it is not a punishment imposed on you, and it is also not because of the transgression you committed. The transgression you committed is a sign that you are wicked. Fine. Now why are you disqualified? Because you are wicked. But if I am not wicked? If I am not wicked, then it is not that they exempt me from the disqualification; they simply do not disqualify me. There is no reason to disqualify me. Now in such a situation it could be that the threshold of evidence required, or the threshold of certainty required, is lower. If the court has good reason to assume that the man is a penitent, then they will not disqualify him. On the contrary, to disqualify him you need proof, not to qualify him. And you have no proof that he is wicked, because it may be that he repented, right? A slightly different formulation, but it is the same idea. Okay. So therefore maybe there is room to uphold the Chida’s thesis and say that what it means that repentance does not help in an earthly religious court is that you need conclusive proof that he repented in order to exempt him from punishment. And the fact that we found that the court does determine that a person repented in various other contexts does not contradict this. It does not contradict it because there, for those determinations, a lower evidentiary level or lower degree of conclusiveness is enough. Okay. That is the Chida’s approach. Now I want us to take a look for a moment at a very interesting responsum of the Noda B’Yehuda, because he also asks this question—but it is just interesting to see the context too, so we’ll also see a bit of the responsum itself. Okay, so Noda B’Yehuda, first edition, Orach Chaim 35, a very well-known responsum of his. “Your letter by post from the 9th of this month reached me yesterday, and although at present I am still occupied with the burden of students, together with the pressures of the times, nevertheless, since the matter concerns one who comes through the doorway of repentance,” someone who is repenting, “I said that the gates of repentance are always open, and therefore I will attend to this despite being under pressure.” And especially since he mentions in his letter that it is for the sake of a great Torah scholar, a major Torah scholar who needs this question dealt with, and therefore he makes time for it. “And behold, the root of the question: one person stumbled with a married woman”—we think we invented the wheel, but no, in every generation there were things like this. A person—and notice we are talking about that same great Torah scholar who needed this question addressed—he sinned with a married woman for years, okay? How many years? Three consecutive years he was in her house. “And now he has been awakened to repentance. Fortunate is he that his Torah stood by him, so that he did not sink into impurity, and his soul has come to ask”—maybe “come to inquire,” I think that is what it means—“for he is now the son-in-law of that woman, having married her daughter.” After he committed adultery with that woman, who was a married woman, afterward he married her daughter. Okay. “Now the question is whether he is obligated to inform his father-in-law”—the father of his wife, yes—“so that he separate from his adulterous wife, or whether silence is preferable, because they are people of standing,” important people with status, “and they have sons who are distinguished in Torah and an honored family, and there is concern for family disgrace, and because of human dignity the penitent may remain passive and not inform his father-in-law at all.” Fine, that is the first question: whether he must inform his father-in-law. “And he further asked: if the law is that he is obligated to inform him, then if he informs his father-in-law and he pays no attention, and his father-in-law ignores the information, is he obligated to come before a religious court?” Does he have to come to court and say, Listen, this woman is forbidden to her husband; compel them—the father-in-law and mother-in-law. And after that he asks another thing: “And if the court has the power to compel him to separate based on the confession of his son-in-law to the father-in-law. And he also asked that a process of repentance be arranged for this man according to his strength, for he is a very weak person and studies Torah constantly”—yes, Torah wears down a person’s strength—so the man is exhausted like this, and we need to arrange repentance for him, but gently: firmness and sensitivity, as they say. “And in order to fulfill his wish”—by the way, there were several responsa like this over the generations; some refer to this responsum. There are several after him who also dealt with questions like this. It raises very, very interesting questions in all kinds of contexts. “And in order to fulfill his wish, I will answer first things first. And since his honor requested not to delay…” and so on, “therefore this is my position. One who knows of a married woman who committed adultery under her husband, whether he is obligated to inform the husband to separate him from prohibition in a case where there is disgrace to an honored and distinguished family in Israel that has sons of distinction—does the principle apply here that human dignity overrides a prohibition in the Torah?” Right? Why not inform? You have to separate him from prohibition. He says no, this is great human dignity—human dignity overrides a prohibition in the Torah. Right? The Talmud says in several places—there is one in Berakhot, mainly around Berakhot 20 and elsewhere—that one may transgress prohibitions because of human dignity, yes, in order not to be humiliated. Now the question is: which prohibition? There are discussions in the Talmud. The conclusion of those discussions is: the exemption, that is, the permission to transgress prohibitions, applies either to rabbinic prohibitions or—yes, “Great is human dignity, for it overrides a prohibition in the Torah.” The Talmud’s conclusion is that what this permits is only rabbinic prohibitions. So why call it a prohibition in the Torah? Because “you shall not turn aside” is the Torah basis for rabbinic prohibitions. Then there is the question, according to Nachmanides, how to explain that—but never mind, that is another discussion. Now another thing is Torah prohibitions in passive omission. Those too are permitted because of human dignity. Yes yes, I know, but I’m not opening that—we’re not broadcasting this live while the university is operating, only recordings. In any case, the claim is that in this case, perhaps because of human dignity—there is an important family here and all kinds of things of that sort—then you are permitted not to inform your father-in-law, thereby causing him to remain in prohibition, because after all you are violating only by passive omission: you are not informing, right? You are simply sitting and not informing. So in passive omission we may transgress a prohibition when it involves human dignity. By the way, the obligation to go and inform—what is that? Maybe “do not stand idly by your neighbor’s blood”; it is not exactly clear what its basis is, but he assumes there is some such obligation, and when I do not go to inform, then I am neglecting that obligation by passive omission. Okay? If it is “do not stand idly by your neighbor’s blood,” then this is a very interesting case, and it also relates, by the way, to the continuation of the discussion, but we won’t get into that. Usually when we distinguish between transgressing by passive omission and by positive action, we tend to connect that with the distinction between positive commandments and prohibitions. Positive commandments we fulfill through positive action and violate through passive omission, right? When we do not do something, we have neglected the positive commandment. Prohibitions are the opposite. We fulfill them by passive omission—we don’t eat pork, that is fulfillment of the commandment; eating pork through positive action is the transgression. Okay? That is the difference between positive commandments and prohibitions. But that is not correct. There are exceptions—for example, “do not stand idly by your neighbor’s blood.” “Do not stand idly by your neighbor’s blood” is a case where, say, you see your friend drowning in the river and you are obligated to rush to his aid, to try to save him. Okay? Now, if you did not do that, you violated “do not stand idly by your neighbor’s blood,” but you violated it by omission, by not acting. Right? You didn’t save him—that was the prohibition. So here you have a prohibition whose transgression is done by passive omission, parallel to neglecting a positive commandment. Okay? The same with the commandment to rest on the Sabbath, for example. That is a positive commandment that one violates when one performs labor on the Sabbath. There is also a prohibition there, but I’m talking about the positive commandment now—you violate it when I do labor on the Sabbath, by positive action, even though it is a positive commandment. So therefore the distinction—this is actually a discussion among the later authorities, which may begin already among the medieval authorities, but the later authorities are the ones who formulate it, among other places here in this responsum—between what really is the difference between a positive commandment and a prohibition. And when we say that “great is human dignity, for it overrides a prohibition in the Torah” in passive omission, what is that talking about? Is that a distinction between neglecting a positive commandment and transgressing a prohibition? Or is it a distinction between passive omission and positive action? Because, for example, here with “do not stand idly by your neighbor’s blood,” we are dealing with a transgression of a prohibition, and ostensibly prohibitions were not permitted because of human dignity; only neglect of a positive commandment was permitted, not transgressing a prohibition. But here the transgression of the prohibition is by passive omission. So if prohibitions committed by passive omission are allowed because of human dignity, there is room to say that the definition is not neglect of a positive commandment versus transgression of a prohibition, but whether the prohibition is by passive omission versus by positive action. And apparently the Noda B’Yehuda—not apparently, the Noda B’Yehuda understands that the distinction is between passive omission and positive action, not between prohibition and positive commandment, but between the mode of transgression and not the type of prohibition. Okay? So therefore here he says: so what is the problem? I do not inform him—that is a transgression by passive omission, okay? And I commit that transgression because of human dignity, so it is permitted; in passive omission it is permitted to transgress because of human dignity. So he says: “Now the matter is simple, that we say ‘great is human dignity’ only in passive omission and not in positive action. And what his honor wrote, that this too with regard to this penitent is called passive omission, that he does not rise and inform the husband”—so this is passive omission, right? Because essentially he is not getting up and informing the husband, so it is a transgression by passive omission. He says yes, “even though the husband performs an act and has relations with his wife, who is forbidden to him.” So there are now transgressions of positive action on the part of the husband when he has marital relations with his wife; he is actually doing a transgression by positive action. But I, the penitent, who do not inform him—I only transgressed by passive omission, not by positive action. Okay? Is such a thing called passive omission, or is it called positive action? Now notice: his simple assumption is that violating “do not stand idly by your neighbor’s blood” is called passive omission, even though it is a prohibition. That is clear; that is not the question he is asking. That is the question asked by Rabbi Elchanan Wasserman. He does not ask that; for him it is obvious. What he asks is: who determines it? I, the penitent, transgress by passive omission, but since I didn’t inform him, he now stumbles in transgressions that are by positive action—he is having forbidden sexual relations. Doesn’t that count as a transgression by positive action? That is something one may not do because of human dignity. Okay? That is his argument. So now he says—the question, yes, that is what he says: “And what his honor wrote, that this too concerning the penitent is considered passive omission, in that he does not rise and inform the husband—and even though the husband does an act and has relations with his wife who is forbidden to him—nevertheless, since the husband does not know, he is acting unwittingly and is not doing an intentional act, and the penitent himself is merely passive omission, so there is no problem.” Okay? The truth is, there was room here to distinguish, because whose human dignity is this? That is the question. If you are talking about the human dignity of the sinner himself, then no one would ever confess sins or repent, because there is his own human dignity opposite that—and it is not reasonable that we are speaking about concern for the dignity of the sinner himself. We are talking about concern for someone who was not the sinner—his father-in-law. He knew nothing, he is not guilty of anything, and he is stumbling into very severe prohibitions. You need to save him. In other words, you are really acting for the sake of his human dignity. So logic suggests that if we are talking about his dignity, then the transgression that you are supposed to override should also be his transgression and not yours. What difference does it make that you commit the transgression by passive omission? For the sake of his dignity, what matters is his transgression, not your transgression. Fine, there was room for such reasoning, but there is room to hesitate about it. He says: “And Maimonides and the Rosh disagreed about this.” This too is a well-known statement, that there is a dispute between Maimonides and the Rosh on this issue. Do we go according to the transgression of the sinner—whether it is positive action—or according to the transgression of the penitent, which is passive omission? He says: “And their dispute depends on variant readings in the Talmudic text in Berakhot 19,” the topic of human dignity. “Rav Yehuda said in the name of Rav: one who finds mixed fabrics in his garment removes it even in the marketplace.” And there the Talmud challenges this from several passages showing that human dignity overrides prohibitions. And the conclusion of the passage is: passive omission is different. In passive omission, it overrides. So what happens here? “One who finds mixed fabrics in his garment removes it even in the marketplace.” Fine? Why should he remove it? After all, passive omission is different. Right? Let him remain clothed and not remove it; that is a transgression by passive omission, right? That is a transgression by passive omission, and that’s it.

[Speaker C] And in passive omission, when one doesn’t make tassels, putting threads on the corners—you have to remove the garment? What are you talking about?

[Rabbi Michael Abraham] That is neglect of a positive commandment, not a prohibition. So? What does that have to do with tassels here? I didn’t understand. Here it has nothing to do with tassels; it is just a garment of mixed fabrics, a garment, mixed fabrics in clothing. Yes. So, “he removes it even in the marketplace,” and there it turns out that with someone wearing mixed fabrics, which is by positive action, we do not take human dignity into account because it is by positive action. Right? In other words, you see there that if you continue wearing the mixed fabrics, then even though you are not taking them off, the transgression is not that you didn’t remove them; the transgression is that you are wearing them. And by the way, this is a topic for us later in the chapter: every moment is considered as though you are in effect putting on the mixed fabrics anew, and therefore it is a transgression by positive action. He says: “And on this law Maimonides and the Rosh disagree.” Maimonides has the reading: “one who finds mixed fabrics in the marketplace,” and he does not read “in his garment,” and it refers to one who finds mixed fabrics on his fellow in the marketplace, where he is obligated to remove it from his fellow. That is Maimonides’ reading. And then he says: it turns out that although with respect to the finder this is considered passive omission—after all, I am not wearing mixed fabrics, he is wearing mixed fabrics, I am just standing by my neighbor’s blood exactly like our case—so with respect to me it is passive omission. But since with respect to him it is positive action, because he is wearing mixed fabrics, then this matter is judged like a transgression of positive action, and that does not help—you cannot transgress that prohibition for the sake of human dignity, even though from my perspective, in committing this prohibition, it is passive omission. So he says: this is exactly the same as our case, right? The father-in-law commits a transgression by positive action; I, who do not warn him, commit a transgression by passive omission. This should be considered positive action, and therefore you do have to inform him—you cannot commit this transgression because of human dignity. That is Maimonides. “And the Rosh reads: one who finds mixed fabrics in his garment,” and it refers to the finder himself being clothed in mixed fabrics in the marketplace—not someone else—where he is obligated to remove them because he is violating by positive action, in that he is walking around clothed in mixed fabrics. Up to here that still proves nothing, right? The Rosh reads it as being mixed fabrics on himself. But the Rosh might say the same even about mixed fabrics on someone else; from the Rosh there is no proof, but you cannot say that the Rosh disagrees with Maimonides. But he says: “However, in continuation, and therefore the Rosh ruled in the laws of mixed fabrics that if one finds mixed fabrics on his fellow in the marketplace, if the wearer is unwitting, then with respect to him it is not considered positive action, and with respect to the finder who sees him clothed and remains silent, it is passive omission.” So there in that second statement of the Rosh it is explicitly written: the Rosh really does disagree with Maimonides, and he says that it is determined according to the other person and not according to the one actually wearing the mixed fabrics. So he says, basically, your question regarding this son-in-law—whether to inform his father-in-law because of human dignity—depends on the dispute between Maimonides and the Rosh. In other words, according to Maimonides you are obligated to inform him, because his transgression is by positive action, and you cannot allow someone to transgress by positive action because of human dignity. And according to the Rosh, no, it is your passive omission; if it is your passive omission, you may refrain from informing him, because that is passive omission. The fact that he transgresses by positive action—he is unwitting, that is not your problem. Yes, so from here he gets into the question of whom we follow in Jewish law: the Shulchan Arukh brought both opinions, the Mechaber ruled like Maimonides, the Rema brings the opinion of the Rosh, and so on. Fine. So he discusses there what happens regarding the woman—in other words, the woman certainly does know; she is not unwitting. She does know that there is a transgression here, so what about her? Women are not generally instructed in these matters—she does not know that she is forbidden to her husband or something like that; fine, maybe. In any case, by the way, there is the same dispute—I see he does not bring it here—but there is the same dispute in Shevuot 30. The Talmud discusses there a Torah scholar who must come and testify for someone, a very great Torah scholar, and it is beneath his dignity to come testify before an ordinary religious court with regular judges—he is the leading scholar of the generation, fine? So it is beneath his dignity to come testify. Now if he does not testify, someone will lose money—that is, or yes, he will lose the case—so the question is whether he is obligated to come and testify. There too, Tosafot gives two answers that disagree on exactly this issue. By not coming and testifying, there is some transgression involved. Your not coming and testifying is passive omission, and because of human dignity you are permitted not to come testify, fine? In the second answer in Tosafot it says no, you do have to come testify, even though from your perspective this is passive omission, because the result will be a transgression by positive action. So there too, in Tosafot, the two answers differ over this same dispute between the Rosh and Maimonides.

[Speaker C] Also in the Babylonian Talmud, in tractate Shabbat—

[Rabbi Michael Abraham] On page 4, where it is permitted—

[Speaker C] —for another person to remove it, so the Talmud asks: would a person commit a transgression in order to save his fellow? Why don’t we say here too, as one says, one person is in passive omission and the other will transgress in some other way—why are you saving him with the—

[Rabbi Michael Abraham] I’m saving him not from a transgression, I’m saving him because of human dignity, from an injury to his dignity. So that’s unrelated; it’s a completely different discussion. On the contrary, if I save him from the transgression, then I’m not committing the transgression. Here I’m allowing myself, yes, to commit a transgression so that he won’t be humiliated. Meaning, if I’m trying to save him from the transgression, then precisely I would not be committing the transgression; the transgression is not saving him—that itself is the transgression. Fine, so never mind, he keeps going here with all the casuistry on this whole matter, but later on—isn’t it also true that Maimonides rules this way? Wait, we’ll see in a moment. He rejects it afterward too; even according to Maimonides you could say this, even according to the Rosh you could say this, but what matters for our purposes is the second part. Yes, “If so, the matter is obvious: one is obligated to tell the husband, to inform him that his wife committed adultery so that he should separate from her.” Fine, that’s his conclusion in the end; the details don’t matter right now. “Rather, now there is room to doubt what Your Honor also wondered in your letter: even if he is obligated to inform him, perhaps that is only in a case where his words will certainly be effective”—that’s under the assumption that when he tells the husband, the husband really will separate from his wife. “For example, if his fellow is wearing a forbidden mixture of wool and linen, he can show him that he has such a mixture in his garment; or if a woman committed adultery in the presence of two witnesses, he can bring him the witnesses and show him that his wife committed adultery and is forbidden to him. But here, even if he tells him, perhaps he will not be believed by the husband as if he were two witnesses, and then his words will be of no use, because the woman becomes forbidden only through warning and seclusion or through clear witnesses.” Okay, so what good does it do for you to go tell the husband if the husband won’t accept what you tell him? Then you didn’t save him from a transgression, and you also humiliated him, so what have we gained? Meaning, you’re willing to humiliate him in order to save him from a transgression, but here you’ll humiliate him. So he says: “It seems that this too is not so, because since if it were clear to him that the husband would believe him and act to separate him from the prohibition, he would be obligated to inform him, then now as well, when it is not clear to him, he is obligated to do what is incumbent on him, and this is no less than the commandment of ‘you shall surely rebuke,’ about which they said in tractate Sabbath: ‘If it is revealed before You, before them who can know?’” Fine, he claims there shouldn’t be a difference. You do your part. What he decides to do with it afterward is his business. It’s a bit similar to the reasoning of “desecrate one Sabbath for him so that he may keep many Sabbaths,” right? We desecrate the Sabbath to save a person’s life, and one of the reasons there in the Talmud, from Rabbi Shimon ben Menasya, is that I save him and then he’ll be able to keep many Sabbaths. So I lost one Sabbath now by desecrating it, and I gain many Sabbaths that he’ll keep in the future. What happens if there’s someone who doesn’t keep the Sabbath? Is it relevant to desecrate the Sabbath in order to save him? In the opinion of almost all halakhic decisors, yes. Or HaChaim writes that no, but almost all the halakhic decisors say yes. Whether because of that or not because of that, the claim is: you do what you need to do. You need to place before him the possibility of keeping Sabbaths. If afterward he decides not to make use of that possibility, that’s his decision, but you need to place before him the possibility of keeping many Sabbaths. The fact that afterward he acts wrongfully and doesn’t do it—he’ll answer for that, fine? That has nothing to do with you. Fine, in any case, of course one can argue with that reasoning. “And all this is for learning in another case, such as another man who knows about a married woman who committed adultery.” Not a foreign man, not a gentile, but another man—not one of the two, not one of the adulterous pair. “But here, in the case at hand, where he himself is the adulterer and he himself is the one causing the husband of the woman to stumble, since he is in sin with his wife all those days and now comes to repent, it is obvious that he is obligated to remove the stumbling block that he caused, and every possible means that can be done so that his fellow not sin because of him he is obligated to do. And therefore as long as this one stumbles because of him, he is disturbed, Heaven forbid,” and so on. All right? So he’s basically saying: you yourself are the one causing him to stumble, so obviously you need to inform him in order to stop causing the stumbling. That too seems to me to be a problematic argument. A problematic argument because the issue is his human dignity. Now his human dignity—what difference does it make whether you are the one causing the stumbling or you are not the one causing the stumbling? Again you keep making only your own calculations and don’t care about him. After all, if it were someone else who was not the one causing the stumbling, then he wouldn’t have been supposed to inform him because of human dignity, right? Meaning, I don’t want to hurt him. The fact that someone committed a transgression—what does that have to do with it? Why are you harming this sinner and hurting his dignity? Since you yourself are the one causing the stumbling, then you have to make sure not to continue causing him to stumble, because every act of intercourse he has, you are in effect violating “do not place a stumbling block.” Right? In effect you are failing here. So now what? Now humiliating him in order to prevent him from transgressions—that isn’t permitted. So you say: yes, but humiliating him in order to prevent me from transgression, that is permitted? Why? Meaning, the opposite—I would say, if you are humiliating him, then at least let it be for his interests. To humiliate him for your interests? Why? Who says your blood is redder? Fine, I don’t know, that’s what he says. And then he says: yes, “As for what Your Honor wondered—if he informs the husband and the husband will not accept his words, is he obligated to come before a religious court and inform the religious court as well? The matter is obvious: it is enough that he inform the husband alone.” Don’t go to a religious court. Why? “Whichever way you look at it: if the husband accepts his words and separates from the woman,” then that’s enough; you didn’t need to get to a religious court. You told the husband and he separated, and good for him. “And if the husband does not accept his words and does not believe him, what practical use is there in his coming before the religious court in vain? The husband is not obligated to believe him, so what can the religious court do about it?” Even if you come to a religious court, the husband can say: I don’t believe him. What do you want from me? There aren’t two witnesses here, so the question is whether you believe him or don’t believe him. I can choose not to believe him. The religious court can’t force me not to believe him. So if I don’t believe him, what does it help that he comes to a religious court? What will the religious court say to the husband? After all, the religious court doesn’t know anything beyond what the husband knows. It knows that this person says he committed adultery with his wife. That’s all. And if I don’t believe him, then even when he comes to a religious court I won’t believe him. What difference does it make? Therefore there’s no point at all in going to a religious court. Fine, more casuistry. “Mayim acharonim”? I sent it to them, not here. Not relevant. What? Not only that—if he took revenge on him, he deserves it. No, he’s a criminal. What do you mean? Not a vengeful person, not some crazed murderer. If he took revenge on him in the sense that he’d get angry at him, I don’t know. Oh! Now we’ve reached the heart of the matter. All that was just background, but it’s an interesting responsum so I thought it was worth reading. But now here’s the second part of the responsum. “And what Your Honor asked of me, to arrange for this penitent a penitential process for his sin, and mentioned that he is a very weak person and will not bear hardship—the fasts and mortifications—and also mentioned wondrous things about his constant study day and night, and that he does not engage in idle talk at all and does not lie in a bed at night at all—behold, you have made it difficult for me, asking me something difficult, for I am not accustomed to answer someone who asks me a question in a matter for which I cannot find a root in the words of the Talmud and the halakhic decisors. For we have not found in all the Talmud a number of fasts, fixed and set, for each sin and guilt according to the severity of the transgression. It is true that fasting is written in the verse in the Prophets for the sake of repentance—‘Return to Me with fasting,’ etc.—however, the setting of the number of fasts is explained neither in Scripture nor in the Talmud, only that the books of ethics and repentance have elaborated on this, and most of their words are built on gut intuitions without root, and one book leans on another with no foundation at all.” That’s a wonderful sentence. It’s so typical—it’s true—and it’s so typical of many fields. There are many fields, by the way, some of which really entered into Jewish law, that are found on gut intuitions, where one book relies on another and no one even remembers where it all started, and in fact there’s no real source for it. There are a great many things like that. In any case, he says: “However, since Your Honor is pressing for this, and the man is a young Torah scholar and a weak person, I won’t refrain from saying a little on this. And behold, his sin is greater than can be borne because of the severity of the sin itself, the sin of a married woman, for three consecutive years,” etc. Yes, repentance according to the measure, three times, etc. “But I say this”—here is the important paragraph—“But I say: all this is only if fasting were something indispensable to repentance. But in truth fasting is only something secondary to repentance, and the essence of repentance is abandoning the sin, verbal confession with a broken heart, regret with a whole heart, and drawing close with fervor to love the Creator—and that is repentance, the meaning of the word repentance, that he return to God and He will have mercy on him, and ‘return to God’ means that he cleave to Him. But the other things—fasting and mortifications—are not primary.” All right, meaning he’s basically saying: we’re used to thinking that the mortifications are repentance. Mortifications are not repentance. Repentance is repentance—doing repentance—that’s what’s called repentance. Mortifications may be accompanying things, if at all, not very central things. “And this matter is well known in Torah, Prophets, Writings, the two Talmuds, and all the midrashim. The prophet says, ‘Return, each man, from his evil way,’ etc. And of this too there is no doubt: when the Sanhedrin was operative, if someone transgressed one of the capital offenses of the religious court after warning, even if the witnesses delayed and did not come to the religious court for many years, and in the meantime this person repented and practiced many mortifications, certainly the religious court pays no attention to his repentance and burns or stones him according to the punishment of the sin.” It’s ours, right? Meaning: when you committed an offense, and the religious court passed judgment—sorry, the religious court didn’t pass judgment; the witnesses delayed and waited, and by the time they came to the religious court years had passed. In the meantime, you repented; you’re a complete penitent, known and famous. Okay, now the witnesses come to the religious court and say the man committed adultery, murder, I don’t know, did all sorts of things that shouldn’t be done. So he says: in such a situation it’s obvious the religious court will burn or stone him as required by law, and won’t pay attention to the fact that he repented. Okay. “And the matter is astonishing: since certainly repentance before God was effective, and his sin has already been removed and his offense atoned for, why should he be put to death? Scripture says, ‘Do not kill the innocent and the righteous.’” Exactly the question we’re talking about. Why kill him? After all, his offense has been atoned for and he is a penitent, so what’s the problem? “Do not kill the innocent and the righteous.” “And explicitly they said at the beginning of ‘These are those who are flogged’”—our Talmud—“those liable to death who repented, the religious court does not forgive them.” Why not, really? “Rather, certainly it is a scriptural decree, for otherwise the punishments of the Torah would in general be nullified, and no person would ever be put to death by a religious court, for he would say, ‘I have sinned and behold I repent.’” Yes, every person who comes to a religious court and is put on trial for some offense he committed can always say: look, I repented. Then you’d never manage to execute anyone. Fine, what’s so bad about that? So you won’t execute anyone—wonderful. Do you have to execute someone? On the contrary: “the congregation shall save”—you’re supposed to look for every possible way to exempt him. What? A destructive religious court, a destructive Sanhedrin, as the Talmud says. The concern really is fraud. “And since the Holy One wanted to impose the death penalty for certain transgressions so that a person should fear committing them, therefore it is necessary that repentance not be effective to save from death by a religious court.” The Holy One decided that… fine, so we won’t execute anyone, even those who deserve to die we won’t execute. That doesn’t work, because the whole purpose of the punishment is deterrence from the transgression, and if you don’t execute anyone then the deterrence isn’t achieved. Since that’s so, there’s no choice: you have to ignore the claim that he repented, because otherwise everyone will use that claim and you won’t execute anyone. And if you don’t execute anyone, then the death penalty is a dead letter. And if it’s a dead letter, there won’t be deterrence so that people won’t sin, etc. “And if you would think that repentance according to the measure is the essence of repentance, then certainly it would have been said to Moses at Sinai for every sin and guilt—its measure and the measure of its repentance according to its value. And now, why would repentance not help save from death by a religious court? Yet all the capital punishments of the religious court would not be nullified. For let us see: if he mortified himself according to the measure. Especially since there are many mortifications in which one cannot deceive”—you can’t trick people—“such as sitting naked before bees and rolling in snow and the like mentioned in the books of repentance. And one who did not do according to the measure would be put to death by the religious court. And even with fasting one cannot deceive, because if the witnesses come immediately to the religious court he will be put to death, for he has still not fasted.” So yes, there are situations in which we would execute someone. He won’t have time to do eighty-five fasts, right, 85 fasts, if the witnesses come immediately to the religious court and within two days they pass sentence and close the file. So you can’t tell me, I did eighty-five fasts. Okay? So if… So he says, this whole discussion of his is not for our question; our question is only background. His discussion is about the question: what is primary in repentance? Is the main thing in repentance to return, or is the main thing all the mortifications and fasts and what is written in the books of repentance? Okay? So he says: if the main thing were all the mortifications and fasts, then I would have no answer to why we don’t accept the penitent and exempt him from punishment by a religious court. What would you say? That we want to execute people in order to deter? No problem—execute one who didn’t repent, or one who didn’t have time to repent because the witnesses came immediately and that was that. But if you say that the essence of repentance is doing repentance itself, not the fasts and mortifications, then in truth you can’t execute anyone. Because he can always tell you that he had thoughts of repentance in his heart and that’s it. As the Talmud in Kiddushin says, yes, if a person betroths a woman on condition that I am perfectly righteous, we take the betrothal seriously. Why? “Perhaps he had thoughts of repentance in his heart.” You see that if you think repentance for a moment, immediately there’s already a possibility that you are perfectly righteous. So here too, basically you could never execute anyone, even if the witnesses came immediately to the religious court and immediately brought you to trial—two hours pass, they’re taking you to be stoned. He says to them: wait one second, I repented while you were chattering with the witnesses—I repented. So you can’t execute me. Therefore, says the Noda B’Yehuda, from the fact that our Talmud says the punishments of the religious court are not nullified by the claim of repentance, it is proven that the essence of repentance is simply inward return, not mortifications and fasts and things of that sort. Yes, “And one cannot say that still all the punishments of the religious court would be nullified, because at the time of warning it would be an uncertain warning, for perhaps he will repent?” This would be an uncertain warning here. Okay? So he says that’s not so, because ordinarily the witnesses brought him immediately to the religious court, etc. So if it’s about mortifications and everything, then they’ll bring him immediately to the religious court and kill him, and that’s not called an uncertain warning. “And further, this works according to the one who says uncertain warning is not considered warning, but according to the one who says it is considered warning—and that is how we rule—what can be said?” Yes, so according to that second view it will still be difficult, for the one who says uncertain warning is indeed warning. And so on, fine? So therefore in the end what the Noda B’Yehuda says for our purposes—after we finish with the whole issue of the penitent and everything—for our purposes what matters is his last discussion. The last discussion says: so why indeed does the religious court… that’s the only position, yes? We asked: why doesn’t the religious court cancel the punishment if the person repented? So the Chida suggested: because we can’t know whether he really repented, yes? These are matters of the heart. I said that seems a little problematic; I tried to suggest maybe still some explanation, but it seems problematic. He suggests another explanation. He says that basically… if you cancel the punishment, then everyone will be able to say he repented and won’t be punished. You’ve basically lost the deterrence that exists in the Torah’s punishments altogether, and therefore it is not reasonable to give up that point if he claims he repented. Now again, behind what he says—let’s leave aside for a moment the question of mortifications or not—there still stands the Chida’s idea. Meaning, if we could know whether he really repented or not, then his argument doesn’t stand, right? Because if we can know whether he repented or not, no problem—the religious court rules that he repented and therefore exempts him from punishment by the religious court. Whoever did not really repent will indeed be punished, so it’s not true that everyone can come and say he repented and escape punishment. You’ll say: but he has to convince the religious court. The religious court discusses it and has to decide. And we saw that the religious court can indeed make such a decision, whether the person did or did not repent. Meaning, behind the Noda B’Yehuda’s words there also sits this principle of the Chida—that basically we can’t clearly determine whether the person repented or not. Because if we could determine it, his argument already becomes much weaker, because not everyone can just say “I repented” and escape punishment; only someone who convinces the religious court and the religious court rules that he truly repented. So he takes it in the direction of mortifications, but never mind—even if it’s not mortifications, the person repented by some other indications without mortifications. Fine? If he repented and the religious court determined that he repented—say he regains fitness in the laws of testimony, fitness for testimony—then the religious court can determine that he repented. So here too it would determine that he repented and everything is fine. The deterrence still stands, because whoever does not really repent will be executed. Somehow hidden behind what he says is also the Chida’s idea that a religious court cannot really determine with certainty whether you did or did not repent. And again, as I said before, at least not at the level of certainty required in order to exempt you from punishment. It may be able to determine that you have regained fitness for testimony, but not at the level of certainty of what’s the difference

[Speaker E] between Maimonides, who says that there are many things for which there is no repentance? There aren’t many things for which there is no

[Rabbi Michael Abraham] repentance; there are things that delay it.

[Speaker E] No, no, there are different kinds of atonement, that’s

[Rabbi Michael Abraham] a Talmud in Yoma, not Maimonides. It’s a Talmud in Yoma that Maimonides brings, but for everything there is repentance—only there are additional stages required beyond repentance. But again, that’s atonement in terms of punishments from Heaven perhaps. The question is whether repentance alone is not enough to exempt from punishment by a religious court because in the end you’re no longer wicked. That’s the question. What exempts you Above in Heaven, or what exactly it exempts you from, is a different discussion. Beyond that, maybe I’ll say one more sentence. I already mentioned here this controversy over the renewal of ordination. And the claim of the Maharlbach, who opposed the renewal of ordination—their motivation for renewing ordination was basically to exempt offenders from karet. Meaning, mainly the forced ones, yes? Those who converted under duress. Basically you want to exempt them from karet. So those liable to karet who were flogged are exempted from their karet—that too is a Mishnah in our chapter. Those liable to karet who were flogged are exempted from their karet, so you need to set up a religious court of ordained judges that will flog them, and then they’ll be exempted from karet. Says the Maharlbach: so what did people do all these, I don’t know, fifteen hundred years since ordination ended? So what, all the Jewish people who violated prohibitions carrying karet are all cut off with no solution? So he makes a far-reaching claim, but he claims: no, they have a solution even without that, even without the lashes. They repented; that will apparently help them even without it. It explicitly says otherwise: only those liable to karet who were flogged are exempted from their karet. And we talked about this in one of the previous classes—whether you need both repentance and lashes, or only the lashes alone are enough—but in principle the Talmud says you need the lashes too. Because where it is impossible, it is impossible. These rules are good rules where it is possible. Where it is impossible, “that which is fit for mixing—lack of mixing does not invalidate.” Meaning, you are fit to be flogged, but you cannot be flogged—fine, so the lashes do not invalidate. You can see an example of this: Tosafot in Gittin 88 discusses there an ordained religious court in monetary law. And we know that today we don’t have ordained judges; for a long time we haven’t had ordained judges. We judge by virtue of “their agency.” The agency of the earlier ones, yes? The ordained judges appointed the future judges as their agents, and therefore they can judge even though they are not ordained. But that’s only in matters that are common and involve financial loss, and there are all sorts of conditions there about which matters can be judged. Tosafot asks: then how do we convert people in our time? After all, a conversion court also needs to be a court of ordained judges; every religious court needs to be a court of ordained judges. We don’t have ordained judges—how is it possible to convert? Now a religious court here is indispensable. Meaning, if you didn’t do it in a religious court, then he isn’t a convert. So if we have no religious court today, and here there’s no rule of “their agency,” because it’s not a case involving financial loss and common occurrence—no, conversion doesn’t involve financial loss. So Tosafot says: fine, then we have to say that it works anyway. Apparently they appointed us even for conversion. Why? Because when it’s impossible, it’s impossible. How do we know this? In conversion itself we see it immediately, because what is needed for conversion? Circumcision, immersion, and presentation of blood-offerings. Presentation of blood-offerings means a sacrifice. Just as the Jewish people converted at Mount Sinai with circumcision, immersion, and presentation of blood-offerings. Now, when there is no Temple there are no sacrifices. So how do we convert? With circumcision and immersion, without sacrifices. Why? Because there are none, right. Meaning, there are things where reason says this is simply impossible nonsense. It cannot be that conversion is impossible. For thousands of years no one can convert? Someone who really wants to and is suitable cannot convert? We have no ordained judges, sorry, the doors are locked. It can’t be. Such a thing can’t be. There’s some kind of reasoning that says: that’s impossible nonsense. It can’t be. So we convert him even though not all the conditions were fulfilled. And I think Tosafot extends this and says: okay, then when there is no court of ordained judges we will convert even without a court of ordained judges, because it cannot be that for thousands of years the doors of conversion are locked. Just as we do not obligate anyone to convert—and on the contrary, we don’t encourage it either—if someone wants to, it cannot be that we close the door in his face. I think the Maharal says the same thing about repentance. Repentance too has all kinds of gradations of atonement and rules of when yes and when no. Fine, when it’s possible, it’s possible. But when it isn’t possible, then okay, I don’t know, maybe you’ll get hit a bit more in Gehinnom, I don’t know exactly what, but you do have a way to rid yourself of your karet somehow. Meaning, it cannot be that—“Return, wayward children,” except for Acher. There must never be a locking of the gates of repentance in any way. Meaning, in the end repentance always helps. Okay. Okay, so that is basically the position of the Noda B’Yehuda, the second position we saw. There’s the Chida, and after that there’s the Noda B’Yehuda. Now both these positions basically assume, as I said before, that a religious court can’t really know whether a person repented or not. The Noda B’Yehuda too assumes it indirectly. And I said that this itself is a somewhat problematic statement—again, unless we talk about burden of proof, and perhaps that can somehow explain it—but it’s a somewhat problematic position. There may be another position, which the Maharal talks about, because he too asks this question, and it seems he understands the concept of repentance a little differently. Maharal in Netivot Olam, the Path of Repentance: “The trait of repentance is when a person regrets the sins he committed and returns to God with all his heart. And let a person not wonder why repentance should help after he has already sinned. For behold, in an earthly religious court, after one has repented though he is liable to death, even if we know that he has already repented, he is not exempt from death.” Two interesting points here. First, he emphasizes: even if we know he repented. Don’t tell me that we can’t know, like the Chida says. The Chida was of course after him, not that he’s responding to the Chida, but I’m saying that he addresses this possibility and rejects it. He says: don’t tell me it’s because we can’t know. No, no— even if we can know, repentance does not exempt him from punishment by a religious court. That’s one. Two, notice the way he frames the question. How did the Chida and the Noda B’Yehuda frame the question? They said: why shouldn’t repentance exempt from punishment by a religious court? What’s the problem? After all, he’s already clean, everything is fine, so why shouldn’t it exempt from punishment by a religious court? Why punish someone who is righteous? He asks the opposite. For punishment by a religious court, it is taken for granted that repentance does not exempt. Why does it exempt from punishment from Heaven? That’s what he asks—not why it doesn’t exempt from punishment by a religious court. The difference in the question is what seems obvious to you and what needs explaining. They are both trying to compare punishment by a religious court and punishment from Heaven. The difference is that for the Maharal, what is obvious is what happens in the earthly religious court—that’s simple. In the earthly religious court, that repentance does not help exempt you from punishment is obvious. The big question is how it can be that in Heaven it does. For the Chida and the Noda B’Yehuda it works the other way. In Heaven, yes—you are basically righteous—so why doesn’t that exempt you in the religious court? The starting point is the opposite starting point. So the Maharal says: “And this matter is because the Heavenly religious court and the earthly religious court are not equal. For the Heavenly religious court, just as under its hand is evil, judging evil, so too it judges the good as well. And therefore, if a person has already repented and repaired his deeds and is judged meritoriously in the Heavenly religious court—for just as judgment for evil is under its hand, so too the good deeds are judged regarding him. But the earthly religious court does not pay attention to this and judges a person only on the evil. And this matter we explained in the chapters in the Path of Bribery; see there.” What is he saying? He says some kind of metaphysical principle, that in an earthly religious court they judge only to the negative; they don’t judge to the positive. They judge bad deeds, not good deeds. Right: an earthly religious court doesn’t give me reward for positive commandments. An earthly religious court gives me punishment for transgressions. In an earthly religious court they judge only the bad side. In a Heavenly religious court they judge both the bad and the good, both punishment and reward. Both positive commandments and prohibitions—everything. He’s talking here about a specific act. No, what’s the good act? We’re talking about someone who repented. He repented for that very same matter, so it’s a discussion of the act he did; it’s not some other discussion. So he says: yes, there’s some kind of metaphysical explanation here that also needs to be understood. Why does that explain it? What’s more understandable there than what you’re trying to explain? Meaning, why? Why shouldn’t the earthly religious court also judge the good side? What’s the problem? Okay? Now he continues and says: “However, according to the things we have said”—and it seems maybe this is a second answer in passing; it’s not entirely clear, but look—“However, according to the things we have said, repentance belongs specifically to God, for He alone accepts those who return. Therefore only the Heavenly religious court cleanses those who return, and not the earthly religious court. For repentance belongs to God, because from God’s side alone there is repentance toward man, and nothing else at all. Therefore you find repentance in the Heavenly religious court and not in the earthly religious court. And on the contrary, wisdom says, ‘evil pursues sinners’”—yes, the well-known midrash that they asked wisdom, “A sinner—what is his punishment?” “Evil pursues sinners.” What suddenly is repentance doing here? Then the Holy One says: let him repent and he will be atoned for. And similarly prophecy. “Repentance exists only from the side of God, and therefore the earthly religious court has no law of repentance.” So here I want to make a few comments.

[Speaker D] What is he saying here now?

[Rabbi Michael Abraham] He was compassionate—but in law you don’t deal with things like that. First of all, as I said before, his starting point is that the law in an earthly religious court is the logical one. His question is why in the Heavenly religious court repentance is taken into account. In the earthly religious court, that repentance isn’t taken into account is obvious. Why is it obvious? Because they asked wisdom, “A sinner—what is his punishment?” Yes, that’s what wisdom says, basically: “evil pursues sinners.” You committed a sin—that’s the fact—you need to be punished for it. Meaning, he sees punishment as punishment given for the past. Even if you now say I repented and now you’re righteous, that doesn’t matter. The fact is that you deserve punishment because in the past you sinned. Why should I care that now you repented? And the view is that repentance does not fix what happened in the past; rather, repentance makes you now righteous. Fine, but the past, when you committed the sin and deserved punishment for it, remains as it was. Therefore he says: why should repentance cancel punishment by a religious court? To the point that he asks: yes, but then why is it not like that in the Heavenly religious court? So he says, in his first answer, because in the Heavenly religious court they also judge good things. Now this is a somewhat delicate point. It seems he understands it this way: we usually understand that when I ask whether he repented, what does “he repented” mean? It means the sin was erased, right? If the sin was erased, there’s no reason to punish him. It’s not a claim that comes to exempt him; it’s a claim that says there is no reason to punish him, because he didn’t commit a sin. Historically he did, but after he repented the sin was erased. Yes, intentional sins become merits. So now there’s no sin—what are you judging him for? The past changed. Okay? What are you judging him for? Therefore that is the assumption of the previous later authorities. And therefore they say: wait, so what’s correct is what the Heavenly religious court does. The Heavenly religious court says: wait, the person fixed everything, everything is fine, so obviously repentance should cancel the punishment. The big question is why in the earthly religious court it doesn’t help. But the Maharal understands punishment differently from them. The Maharal says: no, punishment is for what you did. I don’t care whether you repented. You repented? Excellent. From here on you’re righteous. You cleaned off the filth that was on you. But the act that you did—nobody can erase it. You did it, and the punishment is given for it, for the past, not for the present. So why is the fact that you repented relevant? Therefore, says the Maharal, what is obvious is that in the earthly religious court it doesn’t work. The big question is why in the Heavenly religious court it does work. So how does he explain why it works? He says—notice—repentance does not cancel the sin according to the Maharal; the sin remains in place. Repentance makes me righteous, but I did commit the sin and it is the reason for the punishment. So why does it work in the Heavenly religious court? Because in the Heavenly religious court they now conduct a new judgment. There is the judgment on the transgression, which says you deserve punishment. And now there is a judgment on the repentance: did he repent? If we reach the conclusion that he repented, he deserves reward. So he repented; the reward offsets the punishment, and that’s why it is resolved. The discussion of repentance does not say that he doesn’t deserve punishment because there is no transgression. No—it’s an offset. Meaning: for your transgression you deserve punishment, but if you repented, we will sit and judge your act of repentance—it’s a discussion of the positive thing, not the negative thing, a discussion of the positive thing. In the Heavenly religious court they judge positive things too—whether you deserve reward. In the earthly religious court they don’t judge reward. In the earthly religious court they impose only punishment. So the claim, in short, is that even if you repented, in principle you deserve punishment, but on the other hand you deserve reward, so why have opposite purposes? Meaning, you deserve reward, you deserve punishment, so let’s offset them and that’s it. But it’s not that the punishment really gets canceled. And that is of course according to his position, that he understands punishment is given for the act of transgression, and repentance does not erase the act of transgression from my biography. Rather, repentance comes to offset, nullify, I don’t know, something like that. And I also mentioned that this can perhaps also explain why, according to the Chida, we don’t give the religious court the authority to determine that there was repentance here. Because you are coming to nullify a punishment that he deserves in any case. You are not clarifying here that from the outset he didn’t deserve punishment at all. Rather, he does deserve punishment. Now you want to uproot the punishment that he deserves. For that you need clear proof that he repented, and perhaps that is something the religious court cannot provide. That’s what I said about the Chida. Here too you basically see something similar: the punishment remains in force, you still owe the punishment. It’s not that repentance has now transformed you—intentional sins have become merits—and now you have no transgressions, so what are they punishing you for? No, you have the transgression. You became righteous, but you still carry the transgression on your back, and the punishment is given for that transgression both in the Heavenly religious court and in the earthly religious court. Except that in the Heavenly religious court another discussion takes place: now let’s see whether he is a penitent, okay? If he is a penitent, then he deserves reward. True, in the earthly religious court they do judge whether he is a penitent for the sake of restoring him to fitness for testimony, but not in order to give him reward. That isn’t judging him on good deeds. In the earthly religious court they judge only bad deeds. Okay? In the Heavenly religious court they also judge good deeds, and once he deserves reward, that offsets the punishment and therefore it is nullified. And therefore the Maharal says: basically it is obvious that the rule in the earthly religious court is logical. Because if you committed a transgression, you deserve punishment, period; I don’t care whether you repented or not. In order to explain why repentance helps, you need explanations—that it offsets or whatever. It does not retroactively cancel the grounds on which you deserve punishment, according to him, unlike the previous later authorities. There’s also another example one can bring here. Maimonides writes that at a certain stage there are intermediate people, righteous people, and wicked people; during the Ten Days… the intermediates, their judgment is deferred until Yom Kippur. During the Ten Days of Repentance, if they repent—good; if not, they are judged to death. So the Lechem Mishneh asks: why if they did not repent are they judged to death? If they did not repent, they remain fifty-fifty. The Holy One inclines toward kindness; He doesn’t incline toward harm. So if you are exactly balanced, He won’t incline it toward harm, right? So why are they judged to death? They remain balanced, they remain intermediate. So he says: they have this transgression, that they did not repent, and that tips the scale. Again you see that repentance plays an independent role. It’s not that repentance now determines that you did not have a transgression retroactively—meaning, it erases the transgression and that’s it. No, repentance itself is a positive act, like a commandment. According to Nachmanides it’s literally a commandment; according to Maimonides, no, but according to Nachmanides it’s literally a commandment. And this is a commandment. They judge whether you did the commandment or not, and if you did the commandment, you deserve reward, and that reward is what cancels the punishment—not that it turns out there were no grounds to impose the punishment on you. Okay, so that too is similar to this issue. In the Maharal’s second explanation, he says that only the Holy One accepts those who return. Here he does not tie it to the fact that the Heavenly religious court also judges positive things. Rather he says repentance is apparently some sort of going beyond the letter of the law, and only the Holy One acts beyond the letter of the law, not the earthly religious court. The earthly religious court works according to the law. According to this explanation, repentance does erase the transgression; this is not an offset. But this erasure is an act that goes beyond the letter of the law. And only the Holy One works beyond the letter of the law, not the religious court.

[Speaker C] Even though there are signs of repentance and then he returns to God, still only God can determine that and not the religious court.

[Rabbi Michael Abraham] Yes, after all, a religious court can determine that he has returned to God, right? In fact, it determines that regarding restoration of fitness for testimony. It can make that kind of determination. Okay, so therefore, fine, there is room here for hesitation. In any case, these are somewhat different conceptions of the idea of repentance and punishment itself. So according to the Noda B’Yehuda, what is the role of punishment? To deter, right? Punishment is not some kind of atonement for the transgression; it is not some kind of purification of the person. It is deterrence toward the surroundings. And therefore he says there has to be deterrence. If you let off a person who repented, how will you achieve deterrence? The Noda B’Yehuda’s conception of punishment is that punishment is deterrence. According to the Chida, that is not the case. According to the Chida, punishment is imposed on the person, on the individual who committed the transgression; he is a dirty person, defiled, something like that, and the punishment is meant to purify him or something along those lines. And therefore he says: if he has repented, he is already pure, so why impose the punishment on him? It is only because we do not know, so says the Chida. And the Maharal claims it is neither this nor that. The Maharal claims that punishment is essentially imposed on one who committed a transgression; he has to take the punishment even though right now, the person right now is righteous. That is not the point. Okay, he has to take the punishment. And repentance also works differently according to the Maharal: it offsets the punishment, it does not cancel the cause on account of which you became liable for punishment, but rather it cancels the punishment itself. Okay.

Now I want to talk a little about an exception, or exceptions. The conclusion so far is that repentance can help in an earthly religious court regarding restoration of fitness, maybe also in excommunication—we saw something along those lines according to Maimonides at least. What? But in punishments administered by the court, no, right? And in the heavenly court, yes. In the heavenly court, someone who repented—fine, maybe there are different kinds of atonement—but someone who repented is, in principle, okay. I want to show more places where Jewish law nevertheless does take repentance into account, perhaps even regarding punishments. This is the Talmud in Bava Kamma 75; maybe I’ll share it.

“It was stated: one who admits liability for a fine, and afterward witnesses came.” Yes, the rule is—maybe a short introduction. There are several kinds of punishments in the Torah: lashes, various death penalties, and fines. Fines are different from ordinary monetary payments, because fines belong to the category of punishments. Returning stolen property is not a punishment; repaying a loan is not a punishment; compensating for damage is not a punishment. That is money, compensation law, restoring the prior state or something like that. A fine is a punishment; the punishment just happens to be payment of money, that’s all, but fundamentally it is a punishment. One of the indications of this is that with a fine you do not pay the value of what you damaged; rather, it is a fixed amount. Why? Because the purpose is to punish you, not to restore the previous state. Okay, therefore a fine is a kind of punishment.

Now there is a rule that says that one who admits liability for a fine is exempt. If you come and admit, say, that your ox gored—an innocuous ox that gored—then half-damages is a fine. Yes, half-damages is a fine, so if you admit liability for a fine, you are exempt; you do not have to pay. Why do you not have to pay? Because, as the Talmud says, oxen are presumed to be guarded; essentially, you were okay, you are not at fault, there is no negligence, but they wanted to fine you in order to make sure that you would still guard your ox. All right? You could say it is a kind of incentivizing punishment or something like that, but it is a punishment, not compensation. You do not owe compensation, because you guarded it properly, everything is fine, so on the level of compensation you do not owe it. So if someone admits liability for a fine, he is exempt. A thief who admits is exempt from double payment, because the double payment is a fine. Okay.

Now what happens if he admitted liability for the fine and afterward witnesses came? I come to court and I say: my ox gored; my innocuous ox gored so-and-so’s ox. So basically they should exempt me, right? Because admission regarding a fine leads to exemption. A thief who admitted is exempt from double payment, because the double payment is a fine. Now, what happens if he admitted liability for a fine and afterward witnesses came? I come to court and I say: my ox gored; my innocuous ox gored so-and-so’s ox. So basically they should exempt me, right? Because one who admits liability for a fine is exempt. Now two witnesses come and testify in court that my innocuous ox gored my fellow’s ox. So the Talmud brings a dispute. “It was stated: one who admits liability for a fine and afterward witnesses came—Rav said exempt, and Shmuel said liable.” Yes, Rav said exempt and Shmuel said liable.

Rabba bar Ilai said: What is Rav’s reasoning? “If the theft is found” through witnesses, “it shall be found” through judges. “The theft shall be found”—that is there in the case of one falsely claiming theft. Once there is—that is, if you are convicted on the basis of witnesses, then the judges impose the punishment on you. But if you are convicted on the basis of your own admission, then you are exempt. The Talmud says: Why do I need “excluding one who incriminates himself”? I derive that from “whom God shall condemn”—excluding one who incriminates himself. Right? What, are you coming to teach me that one who admits liability for a fine is exempt? I learned that from “whom the judges shall condemn,” excluding one who incriminates himself. So why do I need this derivation of “the theft shall be found”? The Talmud says: Rather, infer from here that one who admits liability for a fine and afterward witnesses came is exempt. You need two sources in order to tell you that not only is one who admits exempt, but even if afterward witnesses come, he still remains exempt. And Shmuel will tell you: that verse is needed for the thief himself, as taught in the school of Hezekiah, for something else, not for one falsely claiming theft. Fine?

For our purposes, the halakhic decisors rule like Rav in this dispute. One who admits liability for a fine and afterward witnesses come really is exempt. Now, obviously—maybe one note that I always make in contexts like this—when Rav says that one who admits liability for a fine and afterward witnesses come is exempt, it is obvious that this is not a scriptural decree in the sense of a law without reason, even though a verse is brought as the source. Why? Because it is not actually written in the verse. He derives it from the redundancy of two derivations regarding one who admits liability for a fine. Why do you need two derivations to exempt someone who admits liability for a fine? One of them is to tell you that he is exempt even if witnesses come afterward. Right? But why are you applying that redundancy specifically to one who admits liability for a fine and afterward witnesses come? Maybe to one who admits liability for a fine also above a thousand shekels? No, that is not the logic. I mean: why did you make the interpretive decision that this extra derivation comes to exempt also someone who admits liability for a fine and afterward witnesses come? Maybe it comes to exempt also someone who admits liability for a fine of half-damages, or someone who admits liability for a fine over a thousand shekels, or someone who admits liability for a fine even though his name is Reuven or Shimon? I do not know; I can suggest lots of possibilities. And yet there is this option that sounds sensible to me. When we derive something from a redundancy in a verse or some derashah, that does not mean there is no reasoning—quite the opposite. Usually there is reasoning. The reasoning is what tells me what to extract from the derashah. Without reasoning, I would not know what to extract from the derashah. Okay? So clearly there is some reasoning here too, but that is just a side note.

Now, what is the basic idea here? So look: Shmuel’s reasoning is pretty clear, right? Shmuel basically says that if one admits liability for a fine and afterward witnesses come, he is liable. Why? Because in the case of one who admits liability for a fine, the admission has no power to obligate you with a punishment, right? A person is not made liable on the basis of his own statement; “a person cannot render himself wicked,” let’s say, even with regular punishments. You do not make a person liable on the basis of his own statement. Fine? That means the admission has no power to obligate you. And if afterward witnesses come—since the admission has no power to obligate you—the witnesses will obligate you. So if witnesses come afterward, of course you will be liable. Why should I care that you admitted earlier? It makes no difference, because Shmuel understands “one who admits liability for a fine is exempt” to mean that the admission has no power to obligate you. Fine, but if there are witnesses, then they obligate you, not the admission.

But Rav apparently holds that the admission exempts you—not that the admission lacks the power to obligate you. The admission exempts. Therefore, even if witnesses come afterward, what difference does it make? I have already been exempted because I admitted. In other words, according to Rav there is a double novelty in the case of one who admits liability for a fine. One novelty is that the admission has no power to obligate. Shmuel agrees to that novelty too. The second novelty is: the admission not only lacks the power to obligate; if I admitted, that exempts me. Where will the practical difference be? If witnesses come afterward. If the admission exempted me, then why should I care if witnesses come afterward? I am exempt. But if the admission merely failed to obligate me, then if witnesses come afterward, they will obligate me. Okay? Therefore the dispute between Rav and Shmuel is really over the question whether the admission is exculpatory, or merely insufficient to obligate.

I’ll just say parenthetically: remember that if a person comes and declares that he is liable to lashes or liable to death, we do not lash him and we do not execute him. Right? Even though a litigant’s admission is like a hundred witnesses. A person cannot render himself wicked, and therefore even though in monetary matters a litigant’s admission is like a hundred witnesses, in punishments—or in criminal law, let’s call it that, not civil law—we do not accept his admission. A person cannot render himself wicked. Okay? Shmuel argues that “one who admits liability for a fine is exempt” is simply this rule: a person cannot render himself wicked. Meaning, you cannot punish a person when the evidence on which you are relying is the person’s own admission. It is the same thing. According to Shmuel, there is no difference when the punishment is monetary. Yes, regarding admission—a litigant’s admission—even Shmuel agrees that it is like a hundred witnesses: if I admit that I owe someone money, then certainly I owe it. It is like a hundred witnesses. But in punishments, even if they are monetary punishments, the admission is not enough; it cannot make me liable for punishment—not a fine, not lashes, not monetary penalty, not death, nothing like that.

But Rav says no. “One who admits liability for a fine” is something more than admitting liability for punishment. Admitting liability for punishment really does mean that the admission has no power to obligate you. Therefore, for example, the halakhic decisors write: what if someone admitted that he committed some transgression and then witnesses came? There they would make him liable; they would punish him. The fact that he admitted in advance would not help there. Okay? Because regarding punishments, we really do say that the admission does not exempt; the admission is merely not sufficient to obligate. And Shmuel says the same thing regarding a monetary punishment. Rav says no—that is true for bodily punishments. For a monetary punishment, the admission exempts; it does not merely fail to obligate. The question is why. On the face of it, Shmuel is right: why on earth should the admission exempt? Tell me that the admission is not enough to obligate, but why should the admission exempt?

The truth is that once I led a workshop that Rav Ofer used to run—weekend workshops for jurists, judges, lawyers, people like that. One time he invited me to lead one of those weekend workshops, and we studied this topic. There was some judge there who clearly was not familiar with Torah, halakhic, Talmudic matters, and so on. We discussed this issue, and suddenly he suggested some idea that at first I dismissed out of hand as a layman’s idea. Then I said, wait a second—actually, this really does make sense. He said simply: someone who admitted liability for a fine repented. If he repented, he is forgiven. So if witnesses come afterward, what difference does it make? After all, if this were compensation, then of course not. Compensation—you damaged the other person; you have to compensate him for what he lost. But here we are talking about a punishment. Right? If you are talking about punishment, what is the problem? He repented. If he repented, he does not deserve punishment. So if witnesses come afterward, so what? For this act he has already repented; there is no need to punish him. And the claim is that according to Rav, one who admits liability for a fine is really exempt because he repented. The practical difference is that even if witnesses come afterward, he remains exempt. It is not that the evidence is insufficient to obligate him; rather, it is something that exempts. I think repentance is a wonderful mechanism for explaining this matter. I would never have thought of it—it is that sort of layman’s way of thinking—but actually it is a very, very correct idea.

Now of course one can ask: then why not in the case of lashes and death? If it really is the same thing, there too it is a punishment and he admitted, and if admission is repentance, then let him be exempt. And this is our Talmudic passage, which says no. In the case of death we do not exempt him, right? Why not? It could be because lashes and death involve more severe transgressions, and for those repentance is not enough to exempt. But in the case of a fine, which is a monetary punishment, that is considered a lighter punishment, so there repentance is enough to exempt, like the gradations of atonement. Right? That of course fits much better with the Maharal, because it basically says that the reason repentance does not help exempt from death is that it is too severe—not because I do not know whether you repented or not, but because it is too severe; repentance alone will not be enough to deal with your human condition. And about that I say: yes, then I have less of a reservation. If it is a light transgression whose punishment is only a fine, then it could be that repentance does suffice to deal with the matter.

The later authorities hesitate somewhat over this: why should repentance exempt? Some explain that the admission is as if he paid. That is not an explanation; that is just a definition. What do you mean, why? Why is admission as if he paid? Why is that relevant? Okay?

Now maybe—later on, the Talmud says: Rav raised an objection against Shmuel: “If he saw witnesses feeling their way toward coming and said, ‘I stole, but I did not slaughter,’ etc., he pays only the principal.” Right? Meaning, if he comes to admit but he already sees that witnesses are on the way to court, okay, then in such a case he is exempt from the fine—sorry, he is not exempt. According to the Talmud’s conclusion, he is not exempt. At first it looks like he is, but you need to read the continuation of the passage; we do not have much time. So in the conclusion he is not exempt. Why?

Now, with a litigant’s admission we know this rule, right? In a regular monetary admission. So we know why from the principal amount—from the principal he does pay; that is already written there, right? “He saw witnesses drawing near to come”—the principal he does pay; only from the double payment is he exempt. Why does he pay the principal? Because that is not really an admission. You ran to admit in order to be exempt, because you knew the witnesses were on their way and would obligate you. Thank you very much, but we are not going to let you exempt yourself by means of an admission, okay? But from the fine it does exempt—sorry, at first they thought it exempted from the fine. In the conclusion, it does not exempt even from the fine. And why?

We said that “one who admits liability for a fine” is not a mechanism of a litigant’s admission. A litigant’s admission is a matter of credibility. If you admit, then apparently you are credible. You would not lie to your own detriment, right? If you admit that you owe someone something—that is credibility. It is a sensible consideration. So why, if you see witnesses drawing near and you run to admit, are you not credible? Because you really do not have credibility. Because if you ran to admit, it was not because you suddenly decided to repent, but because you saw them arriving, okay? But in the case of admitting liability for a fine, that is not—apparently that is not a matter of credibility. In admitting liability for a fine, the problem is not credibility. As far as credibility is concerned, you are credible—like a hundred witnesses. Why not? What is the difference? Rather, you cannot impose punishment on the basis of your admission, right? So why, there too, if he sees witnesses drawing near to come, is that also not considered an admission? Fair enough, when you are operating on the plane of credibility, I understand. You already see the witnesses arriving, and you run quickly, so do not tell me you are saying this because it is true. You are saying it in order to avoid the punishment, okay? But if you are talking about one who admits liability for a fine, that is not discussed in terms of credibility. It is not a question of credibility; obviously you are credible. The whole question is whether punishment is imposed on you, right? So why, if he sees witnesses drawing near and runs to admit, do we then impose the punishment on him? Maybe he is not credible? Credibility is not the issue. The discussion is not about credibility. The answer is because he is not a genuine penitent. Because he ran to admit only because he saw that the witnesses were on the way to court. So he is not a true penitent. In such a case, the fact that he ran to admit is not evidence that he is a penitent. Therefore, if he saw witnesses drawing near to come, he really will not be exempt. Okay? This strengthens that explanation which ties the whole matter to repentance.

By the way, there are some discussions about the question, in the case of one who admits liability for a fine, whether the debt does not exist at all, or whether they simply do not collect it from him. When he admits liability for a fine, is it in principle proper that he should pay, but the court just does not collect from him? Or no—there is no fine at all in such a case? Okay? So there is a dispute among the later authorities on this matter. I think that according to the approach I presented here, this fits the view that there is no debt at all. There is no debt at all. He repented; the transgression has been taken care of, so there is no need to impose punishment on him. He is exempt from the punishment. After all, you do not need to pay beyond the letter of the law, because the other person is not lacking anything—that is, you are not paying him compensation; this is not ordinary money, it is a fine. The whole issue is the punishment imposed on you. Punishment on you should not be imposed because you repented and you are already righteous; everything is fine. Okay?

So this basically means for our purposes—let’s come back here, perhaps—it means for our purposes that according to Rav, in the case of one who admits liability for a fine, where if he admitted liability for a fine and afterward witnesses came he is exempt, and this is how we rule in Jewish law, this basically means that one who admits liability for a fine is another example of a situation in which repentance is effective in an earthly religious court. And even regarding punishments. Only a monetary punishment—the lighter punishments. With a monetary punishment, if you repent, that is fine. With a bodily punishment, no. All right? Later we will see a view that says perhaps it also helps for bodily punishment. Not like the plain meaning of our Talmudic passage, but it is indeed a lone view that we will see later. Okay? Let’s stop here.