Topics in Tractate Makkot, Chapter 3 – Lesson 5 – Rabbi Michael Avraham

[Speaker A] Okay,

[Rabbi Michael Abraham] let’s begin.

[Speaker A] In the lecture

[Rabbi Michael Abraham] before this one I still want to complete one more point. In the previous lecture we saw Rashi’s view that confession exempts from punishments imposed by a religious court, even an earthly religious court. In the end, my conclusion—what I proposed in order to reconcile him with our passage, where it looks like that doesn’t help, only for the heavenly court and not for the earthly court—the claim there is that repentance does not help. The claim is that in our passage we’re talking about a case where he repented after the verdict. Why? How do I know that? Because that’s what the Talmud says: how can they judge him—after all, who knows, maybe he’ll repent and then he’ll be exempt from karet. Meaning, at the moment we judge him, he hasn’t yet repented. There’s only a possibility that afterward he’ll repent and then be exempt from karet. Okay? So our passage, which says repentance doesn’t help, is talking about repentance after the punishment has already been decreed. Right? When I sentence him, say, to lashes, and you say, “You can’t sentence him to lashes because maybe he’ll also be liable for something else”—no, because maybe he’ll be liable for karet. No, since maybe he’ll repent and be exempt from karet, that doesn’t exempt him from the lashes instead of karet. Okay? So you see that the repentance in question is in a situation where he will do it after the lashes have already been decreed. Okay? The question is whether I can sentence him to lashes now if maybe in the future he’ll repent. That means we’re talking about repentance done after judgment has been issued. Therefore there the Talmud says repentance doesn’t help to exempt from punishments imposed by a religious court. From punishments of the heavenly court, yes; from punishments of the earthly court, no. But in principle, if he repents before the verdict, maybe that would help. By the way, one could even say more than that: what happens if he was sentenced, say, to death—by human hands, a court-imposed death penalty—and afterward he repented, before they executed him? After they executed him it’s a bit complicated to repent, but he repented before they killed him. Okay? So here he repented before they killed him, but after the verdict had already been completed. Meaning, the verdict has already been issued. There’s room to wonder whether such a person would be executed. Maybe even in that case not. Maybe even there not, even though it’s already after the verdict, because in the end, when they carry it out, by then he’s clean, he’s already repented. In the case of lashes, what happens is that with lashes he can be lashed and repent afterward as well. With death that’s irrelevant—once he’s dead, he’s dead. But with lashes you can lash him and he repents afterward. And then, well, at that point it’s no longer relevant, he’s already been lashed. Fine. Fine, but simply speaking, the distinction is before verdict and after verdict, regardless of when the verdict is carried out. And the basic claim was that when a person confesses—if he comes and confesses on his own initiative—that confession is basically a kind of repentance. And therefore, one who confesses to a fine and afterward witnesses come is exempt, and according to Rashi really one who confesses to any punishment. If witnesses come later, he’ll be exempt. Okay? So the explanation I proposed is that this confession is an act of repentance. Right, and then the question is how that fits with the Talmud in Makkot. So the answer is: after the verdict versus before the verdict, what I said a moment ago.

I think I also mentioned another possibility, or maybe someone here mentioned it, I don’t remember. It could be that the purpose of punishment is to push him to repent. If he has already repented, there’s no point in imposing the punishment. In other words, or maybe its purpose is to make him confess, regardless of repentance—the purpose of punishment is to force him to confess or to bring the truth before the court, and therefore if he has already confessed, there’s no point in imposing the punishment. The whole idea of the punishment is that it tries to force the person to confess. Maybe that’s another possibility too, I don’t know.

In any event, what I want to complete from the previous lecture is the view of the author of Beit She’arim. I started with this last time. I said that he is basically putting on the table the idea that repentance is effective even regarding punishments imposed by a religious court. Okay? He says this as practical Jewish law as well. Let’s read it for a moment.

“On this basis one may discuss a new matter: for the Noda B’Yehuda, like the Or HaChaim whom we saw, asked regarding all those liable to court-imposed death, why, if they repented, does the earthly religious court not forgive them? Since he repented and his iniquity has departed and his sin is atoned for, and it is written, ונקי וצדיק אל תהרוג (‘Do not kill the innocent and righteous’). And from this he proved that the essence of repentance is abandoning the sin, verbal confession, and regret. If so, if repentance were effective, all punishments imposed by the religious court would be nullified, because everyone would say, ‘I have sinned and behold I repent.’ And the Torah said, למען ישמעו וייראו (‘so that they may hear and fear’), and if repentance were effective, there would no longer be ‘hear and fear,’ because everyone would do as above. But if we say that repentance of equivalent weight is the essence of repentance, such as sufferings—not only regret, future commitment, and verbal confession, but suffering, which is what he here calls repentance of equivalent weight—then certainly it was said to Moses at Sinai for every sin and the weight of its repentance. If so, why should repentance not help to save one from a court-imposed death? Nevertheless the punishments of the religious court would not be nullified and there would still be ‘hear and fear,’ because this is something whose reality can be verified—whether he actually performed repentance of equivalent weight.”

We saw this Noda B’Yehuda. What he is really saying is this: he discusses the question of what repentance is. Is repentance an inner process—returning in repentance, regretting, future commitment, and so on—or does repentance also include suffering and what he calls repentance of equivalent weight? So he says: if repentance were only the inner matter—sorry, if repentance were repentance of… yes, if repentance… He proves that the essence of repentance is the inner repentance, not repentance of equivalent weight. And then what? Then clearly such repentance cannot exempt from punishments imposed by a religious court. Why not? Because anyone can come and say that he repented in his heart, and then in effect there will be no punishments imposed by the religious court at all. The whole deterrent function of the court’s punishments disappears. They won’t deter anyone, because I can always say, “I repented,” and I won’t be punished. The deterrent dimension is gone. Therefore it doesn’t help to exempt from punishments imposed by a religious court.

But if repentance were repentance of equivalent weight, then in principle it should exempt even from punishments imposed by a religious court. Why? Because you can’t just claim that you did repentance of equivalent weight—we can see it. Meaning, if you did repentance of equivalent weight, you rolled in the snow or whatever, all sorts of things like that. So that’s public; it’s not something happening only in your inner life. Everyone can see it. So there’s no concern that everyone will just say he did repentance of equivalent weight and be exempt from punishment. If you didn’t do it—we didn’t see that you did repentance of equivalent weight—you’ll be punished. If you did, then fine, you really will be exempt. But that doesn’t bother me. I have no interest in punishing you. Right? I only want to make sure you won’t be exempt from punishment without reason. But when there is reason to exempt you, perfectly fine—then be exempt, no problem at all. And that is the Noda B’Yehuda’s proof that repentance means inner repentance and not repentance of equivalent weight. Okay?

And then he says: “According to the above, since repentance without suffering does not atone, it is reasonable to say that we require repentance of equivalent weight, and if he did that, then indeed the earthly religious court forgives him. And that which we say—that if he repented, the earthly religious court does not forgive him—that is only if he repented merely through abandoning the sin, verbal confession, and regret, since that is something we cannot verify. But if he performed repentance of equivalent weight, they forgive him.”

What does that mean? Why wouldn’t he receive lashes? What? He’s basically taking the distinction made by the Noda B’Yehuda and reversing the conclusion that comes out of it. The Noda B’Yehuda assumes repentance does not help for punishments imposed by a religious court, so repentance must not be repentance of equivalent weight, but rather inner repentance, right? He says: why? Say the opposite. What are you saying? That if repentance of equivalent weight were the real repentance, then it should exempt from punishments imposed by a religious court—that’s what the Noda B’Yehuda assumes. The author of Beit She’arim says: exactly. If you do repentance of equivalent weight, it really does exempt you. And everything written that repentance doesn’t exempt you from punishments imposed by a religious court refers only to a case where you didn’t do repentance of equivalent weight, but only inner repentance. So he takes the Noda B’Yehuda’s distinction but reaches the opposite conclusion. The Noda B’Yehuda assumes that repentance of any sort does not help to exempt from punishments imposed by a religious court. That’s how he learns our passage. Therefore he says you must say repentance is not repentance of equivalent weight but inner repentance. But Beit She’arim says: no—why are you making that assumption about our passage? Say the opposite. What are you, Noda B’Yehuda, saying? That if repentance were repentance of equivalent weight, it should exempt from punishments imposed by a religious court? Exactly—it not only should, it does. If you performed repentance of equivalent weight, that really exempts you. And all our passage means when it says repentance doesn’t exempt you is only when you did inner repentance, not repentance of equivalent weight. But if you did repentance of equivalent weight, you really would be exempt.

And that’s what he says: “Nevertheless this is not included in the forty lashes, for lashes and repentance of equivalent weight are two separate domains, and lashes are lighter than repentance of equivalent weight for those liable to court-imposed death. But those liable to karet who repented in their heart—the heavenly court forgives—and the repentance of equivalent weight, or divinely sent sufferings that are still needed afterward, are lighter than lashes; therefore they fall under the category of the forty lashes.” That’s how he explains our Talmudic passage—why in cases of karet he is exempt but in those liable to death he is not exempt.

So for our purposes, what he is saying is: he takes the Noda B’Yehuda’s distinction and flips it. He says, yes, in the passage in Makkot, when it says repentance does not exempt from punishments imposed by a religious court, that refers only to inner repentance. If you did repentance of equivalent weight, it really does exempt you. What—from all punishments imposed by a religious court? Yes, from all punishments imposed by a religious court repentance exempts you.

The point is that what I said earlier, what I proposed earlier in order to reconcile Rashi, is not this proposal. It’s a different proposal. I wanted to claim that repentance is what the Noda B’Yehuda said—inner repentance—and nevertheless it exempts from punishments imposed by a religious court. Even inner repentance, not only repentance of equivalent weight as Beit She’arim says. Inner repentance also exempts from punishments imposed by a religious court. So what is written in our Talmudic passage? There it says it does not exempt. I said: because there we are talking about after the verdict. Repentance exempts you when you did it before the verdict. If you do it after the verdict, it doesn’t exempt you. And you can understand why. First, formally, it doesn’t exempt you because you’ve already become obligated. But substantively it also doesn’t exempt you, because after you’ve received the verdict, obviously you’ll repent in order to escape the verdict, but that’s not genuine repentance. We suspect that you’re just doing it in order not to be punished. Okay? That’s no big deal. If you came and repented on your own initiative, and did it before the verdict—or especially if you came voluntarily and confessed, not only after you were already brought to court—then certainly you came to genuine repentance, and that exempts you from punishment. But after the verdict, if you repent, that’s no longer serious; it doesn’t exempt you. And then you don’t need Beit She’arim. In other words, he makes a distinction and says: inner repentance definitely does not exempt you, repentance of equivalent weight does. I say no—even inner repentance exempts you, as long as it was done before the verdict and on your own initiative. If it was done before the verdict and on your own initiative, then it really does exempt you. Okay?

What? I said that the court knows how to assess this, because I brought proofs for that in the first or second lecture, I don’t remember. After all, when the court judges, for example, whether to restore someone’s validity as a witness—if he repents, he regains his fitness—how does the court know? I said: they see his behavior, I don’t know, they’re persuaded by his sincerity, by his authenticity. True, they can always make a mistake, but in everything a court does there can be error. Fine. They do the best they can, and whatever conclusion they reach is their conclusion until proven otherwise. And there is always concern that we made a mistake. Okay, we’re human beings; we may always have erred.

What about death? If a court issued a death sentence—and if he repents before the verdict? Yes, yes, that’s the claim. We saw it in Rashi. I’m only saying that all the later authorities I brought—the Chida, the Noda B’Yehuda, all those later authorities I mentioned, or the Maharal—they are all really struggling with the same question: why shouldn’t repentance help? After all, with a penitent they tell me that intentional sins become like merits for him, everything is erased, the Holy One, blessed be He, forgives him, right? Everything is fine. So why punish him with punishments imposed by a religious court? That was the starting point of the whole discussion. Except that we had a passage in Makkot saying no, it doesn’t exempt. Fine, so there were various explanations, one kind and another kind. None of them is really convincing. So I say: wait a second, let’s return to the starting point. Exactly so—he is clean, and it really does exempt him. Everything is fine. Yes—it exempts him also from punishments imposed by a religious court. So why does our Talmudic passage say no? Beit She’arim says: because it’s repentance in the heart and not repentance—sorry, repentance of equivalent weight—and I claim it’s because it’s repentance after execution, after the verdict, and not before the verdict. Before the verdict it exempts him. When someone comes before the court already as a penitent, the court won’t sentence him to death. He’s a penitent, he’s clean—why would they sentence him? After they sentenced him to death, then suddenly he comes and repents. Fine, you’re repenting because you don’t want to die. That’s not—yes—that’s not authentic. So there it won’t exempt you, that’s all.

And you have to understand: this sounds terribly novel, because almost nobody accepts it. But actually it’s the most obvious thing in the world. Repentance really works—why shouldn’t it work? We’re just so used to saying no, not with punishments imposed by a religious court. But no, that’s not true. It’s only our passage in Makkot, and that passage can be reconciled. Therefore there’s no reason to deviate from the simple understanding. Okay, so that’s regarding Beit She’arim.

Now I want to continue. There’s a Talmudic passage in Bava Kamma 75, and the Talmud says that if there is a confession that didn’t obligate you in anything, then it also doesn’t exempt. In order for the confession to exempt you, as in “one who confesses to a fine is exempt”—for the confession to exempt you, and according to Rashi this applies to all punishments, not only a fine—for the confession to exempt you, that confession has to have obligated you in something. Where do we see that? The Talmud there on 75 says:

Rav Hamnuna said: “Rav’s statement makes sense where he said, ‘I stole,’ and witnesses came that he stole—he is exempt, since he made himself liable for the principal. But if he said, ‘I did not steal,’ and witnesses came that he stole, and then he returned and said, ‘I slaughtered and sold,’ and witnesses came that he slaughtered and sold—he is liable, since he exempted himself from nothing.”

Meaning: if a person comes and says, “I stole,” he confesses, okay? What does that mean? It means he made himself liable for the principal and for the double payment. A thief pays double, right? The principal is money; the double payment is a fine. Okay? So Rav Hamnuna says that in such a case his confession made him liable for the principal, right? “He made himself liable for the principal.” Because he made himself liable for the principal, if he confessed regarding the double payment he is exempt, so that even if witnesses later come and say he slaughtered the animal, he’ll be exempt, because one who confesses to a fine and afterward witnesses come is exempt.

But if he says, “I didn’t steal,” and witnesses come and say, “You did steal”—fine, now he really did steal—and now on his own initiative he says, “I also slaughtered and sold.” And the witnesses don’t know that, right? They said he stole. He says, “Yes, I myself admit I slaughtered and sold.” In such a case your confession won’t exempt you. What does that mean, it won’t exempt you? We won’t make you liable just because you say you slaughtered and sold, but if witnesses now come regarding the slaughtering and selling, then the fact that you confessed earlier will not exempt you. Or in other words, in that case the confession contains only the first law and not the second law.

Remember that we said that with confession concerning a fine there are two novelties. One novelty is that it’s inadmissible, under the rule “a person cannot make himself wicked”—you can’t convict a person based on his own confession. The second law is that it’s not only inadmissible; it actually exempts him. What’s the practical difference? If witnesses come afterward, then if it’s merely inadmissible, fine—witnesses came afterward, so I’ll convict based on the witnesses, not on his confession. The confession is inadmissible, but the witnesses are admissible. But if you say it actually exempts him, then he’s already exempt. So why should I care if witnesses come? I believe you that you slaughtered and sold, but the witnesses came and made you liable. If you say that when the witnesses come and make you liable you are still exempt, then that means not only is your confession inadmissible, it also exempts you. Right? That’s what we said. There are two laws in confession.

So the Talmud says—Rav Hamnuna says—the first law, that the confession is inadmissible because a person cannot make himself wicked, always applies. You can’t convict a person on the basis of his confession. The second law, that the confession also exempts and is not merely inadmissible, applies only if the initial confession obligated him in something. If it didn’t obligate him in anything, then even though it is still inadmissible, it doesn’t exempt him. Meaning, if my first confession did not obligate me regarding the theft because I didn’t confess at all—witnesses came—okay, then I am liable for the theft not because of my confession, but because there are witnesses that I stole. And now I confess that I slaughtered and sold, which carries a payment of four or five. I’m making myself liable for four or five. So at first glance I should be exempt, and then even if witnesses come later I should be exempt, because one who confesses to a fine is exempt. Rav Hamnuna says: no. One who confesses to a fine is exempt only if the confession obligated him in something. But here, regarding the theft, he did not become liable because of his confession; he became liable because there were witnesses. So his confession does only one thing—it exempts him from the fine. Such a confession does not exempt.

Okay? If you paid a price for that confession—if it obligated you in something—that’s a meaningful confession, and we give it the power to exempt you. But if it didn’t obligate you in anything, and the whole practical effect of the confession is just that you’ll be exempt from punishments—thank you very much, I’d confess too. It exempts me from punishments and doesn’t obligate me in anything. Okay?

This of course strongly reinforces the idea that the confession exempts you because you are a penitent. Meaning, if you—how do I know you are a penitent? If the confession obligated you in something, you paid a price for having confessed. If you just confess and the only consequence is that you simply won’t be punished, that’s not a penitent. As we said before, after the verdict, if you come and confess, what does that help me? You’re not a penitent. You’re doing it in order to escape the punishment. So this strongly reinforces the idea I mentioned, that confession exempts you because we see it as an act of repentance. But that’s only in a case where the confession really has a price. If the confession has no price, then this is not repentance. There is no repentance at all in that confession, and therefore it also won’t exempt you.

Rava said—Rava disagrees with Rav Hamnuna: “I have deprived the elder of the academy, for Rabban Gamliel exempted himself from nothing.” Rabban Gamliel said he knocked out the tooth of Tavi his slave, right? And freedom through tooth and eye is a fine. Okay? So because he confessed, he exempted himself. Even if witnesses were to come, he is basically exempt. And Rav Chisda said to Rav Huna, and he didn’t answer him—and they didn’t say, “Wait a second, but he didn’t obligate himself in anything.” So you see that even if he doesn’t obligate himself in anything, confession to a fine exempts. Not like Rav Hamnuna, who said: what sort of confession exempts? Only a confession that obligated me in something, but not one that obligated me in nothing. Rava says: no. Even a confession that obligated me in nothing contains both the first law—that it is inadmissible—and the second law—that it exempts, not only that it’s inadmissible. And there’s no distinction between whether the confession obligated me or didn’t.

It was also stated: Rav Chiyya bar Abba said in the name of Rabbi Yochanan: “I stole,” and witnesses came that he stole—he is exempt, since he made himself liable for the principal. But if he said, “I did not steal,” and witnesses came that he stole, and then he returned and said, “I slaughtered and sold,” and witnesses came that he slaughtered and sold—he is liable, since he exempted himself from nothing.” Rav Ashi said: “The Mishnah and the baraita also support this.” Meaning, he infers like Rav Hamnuna. Practically, Jewish law is ruled like Rav Hamnuna. This baraita follows Rav Hamnuna; practically we rule like Rav Hamnuna. Okay.

Now let’s take a look at what Rav Hamnuna is saying. On the one hand, what he says strengthens my basic thesis, right? Namely, that if the person confessed, why do I exempt him even if witnesses come later? Not why it is inadmissible, but why it exempts—right? I’m speaking about the second law. Why does it exempt? It exempts because we see him as a penitent. If he repented, there is no point in punishing him, and a fine is indeed a punishment. And according to Rashi this is not only true of a fine but of all punishments. Okay. But maybe it also prevents people from coming and confessing wholesale just to exempt themselves from all kinds of liabilities. Same idea—they are basically confessing not in order to repent. So if they want to exempt themselves, that means they are not confessing in order to repent; they are confessing in order to escape punishment. Exactly. Right. In that sense, that is exactly the claim.

So I’m saying that this law of Rav Hamnuna, on its face, supports the claim that confession here is viewed as repentance and therefore exempts. And then he says, as I said before, if you did it before the verdict, that’s repentance; if you did it after the verdict, that’s not repentance—you simply want to escape the punishment. That is basically exactly what he says. In other words, if you are not paying a price, then we can’t see you as a penitent; you’re doing it to escape punishment. So we won’t exempt you from the punishment. Okay?

By the way, of course this creates a loop. Right? I’m not exempting him from punishment. So now if he comes to confess, then I should exempt him from punishment. Because now I’ve established that this confession doesn’t exempt him from punishment. So now when he comes and confesses, I can’t say he’s confessing only in order to escape punishment, because the law is that he won’t escape punishment by confessing, right? So he’s a genuine penitent. Well then, if he’s a genuine penitent, I should exempt him from punishment. And around we go. Right? There’s some kind of loop here, obviously. There are many things like that, like with migo. If you say there is a migo, then the weaker claim is no longer weak, it’s strong, so there is no migo. Or cases like an inevitable result one does not desire—various loops like that. If an inevitable result one does not desire does not exempt you, then indeed you don’t desire it. In other words, yes. Fine.

In any event, that’s one direction. It confirms the general direction, but in the bottom line it doesn’t fit what I’m saying—what Rav Hamnuna says. Why not? Because Rav Hamnuna is really claiming that an ordinary confession is not a confession that we view as an act of repentance. Only if that confession obligated him in something. Now, in most cases that we know—certainly according to Rashi, who expands this to all punishments—say someone comes and says, “I ate pork.” Okay? And afterward two witnesses come that he ate pork. So the fact that you ate pork—since a person cannot make himself wicked, that confession is inadmissible. But still, therefore they don’t lash you. But now witnesses come and want to lash you based on the witnesses. No—the confession is not only inadmissible, it also exempts. Why? Because if you came on your own initiative and said, “I ate pork,” then you are a penitent. If you’re a penitent, I don’t lash you; you’re clean. ונקי וצדיק אל תהרוג—“Do not kill the innocent and righteous.” Okay? So if you are a penitent, we don’t lash you.

Now, what did he obligate himself in when he said, “I ate pork”? He came and confessed, “I ate pork”—nothing. So why does that help? “A person cannot make himself wicked” means inadmissibility. I’m asking: why does it exempt? What happens if witnesses come afterward? Right? I confess that I ate pork, and then two witnesses come and say I ate pork. In that situation, according to Rashi, I’m exempt from lashes, right? So if I’m exempt from lashes, why? Because the initial confession was an act of repentance. But here in Rav Hamnuna we saw that an act of repentance—a confession is considered an act of repentance only where it obligated me in something, where the confession had a price, where I took a risk. Here we see no such thing. Okay?

So Rav Hamnuna strengthens the general direction I proposed—that confession is seen as an act of repentance and therefore exempts. But in the practical bottom line, it’s not like the Rashi we saw, because practically he says: right, confession exempts you when we see it as repentance—but when does that happen? Only when the confession obligated him in something. But in the normal case, when you come and confess to an offense carrying punishment, you didn’t obligate yourself in anything. They exempted you from punishment, and that’s all there is.

You have to remember that theft is a special law, because with theft there is one layer which is the monetary liability—the principal—that one layer you owe, and after that come the layers of the fine: the double payment and the four- or five-fold payment, which is the fine. So in theft there are two discussions: the monetary liability and the liability for the fine. When I confessed, ostensibly I came to obligate myself in both. So as for the money, I really do become liable—“a litigant’s own admission is like a hundred witnesses”—but a person cannot make himself wicked, so as for the fine, no. Since regarding the money I confessed and obligated myself, therefore my confession regarding the fine exempts me, because that same confession also obligated me in something.

But in the ordinary case, if I just confess that I committed an offense punishable by death or lashes, I obligated myself in nothing. They exempt me from the punishment, so I didn’t obligate myself in anything. So really, that’s not called a confession that is an act of repentance. Show me there is a price—there is no price. Right? So why in that case does Rashi say that even there it exempts you? That’s against Rav Hamnuna. Do you understand what I’m asking?

False witnesses regarding a fine—that too is against Rav Hamnuna. Again. False witnesses regarding a fine, which is a fine—what did they obligate themselves in by saying they lied? First of all, with false witnesses I think it’s not exactly like Rav Hamnuna, because their disqualification from testimony is a consequence that exists in any case. The question whether we do to them “as they intended to do” is an additional layer. Okay.

So in short, the direction is strengthened—the general line of thought is strengthened by this law of Rav Hamnuna. But practically, in the end it applies in very, very, very specific cases. You can’t say broadly that anyone who confesses to liability for a punishment will be exempt. Only a confession that also should have obligated him in something—only that will exempt him. It’s true that we see confession as an act of repentance and that exempts you from punishment, but that is said only about very specific kinds of confessions that involve a price. And therefore this is really a document with its receipt attached—it supports Rashi’s principle, but almost empties it of content, because it basically means that in most cases it’s irrelevant.

Now, practically speaking, if Rashi says this, then there is simply a difficulty on Rashi from Rav Hamnuna—forget my nice interpretations. There is a difficulty on Rashi from Rav Hamnuna, because Rashi really says that confession exempts you from everything, even if it didn’t obligate you in anything. And practically we rule like Rav Hamnuna. So there is simply a difficulty on Rashi, even without my whole explanatory framework. Okay?

Maimonides indeed writes this way: “How so? If he confessed in court that he stole, and afterward…” Today he’s more liberal with me. More liberal with me—he’s afraid I’ll stand up to him. He’s trembling with fear, simply. “Let not him who girds himself boast like him who ungirds.” Fine.

“How so? If he confessed in court that he stole, and afterward witnesses came that he stole, he is exempt from the double payment, because he made himself liable for the principal before the witnesses came. But if he said, ‘I did not steal,’ thereby exempting himself from everything, and witnesses came that he stole, and he then returned and said in court, ‘I slaughtered and sold,’ if witnesses then came that he slaughtered and sold, he pays the four- or five-fold payment, because at first he exempted himself from nothing until the witnesses came.”

Fine? He rules like Rav Hamnuna. Good. So Maimonides owes Rashi nothing. Fine. Maimonides will indeed probably hold that confession to a fine or punishment does not exempt from the punishment. But Rashi is difficult in light of Rav Hamnuna. Okay? What? Rav Hamnuna is difficult in light of Rashi. Yes, exactly. So Maimonides perhaps really doesn’t agree with him.

Now the truth is that in Rav Hamnuna’s case—notice how it is described. He says, “I did not steal,” and then witnesses come and say that he stole. So he became liable for the theft. And now he comes and confesses that he slaughtered and sold. Right? Now here, once you have witnesses for the theft and now you come and confess to the slaughtering and selling, maybe there indeed we would require that you obligate yourself in something. Why? Because if you were a genuine penitent, you would already have confessed to the theft itself. Why, regarding the theft itself, did you say “I didn’t steal”? Witnesses had to come and convict you that you stole, and you yourself didn’t confess. So you are not truly a penitent. Now you come and say “I slaughtered and sold”—it is certainly possible that you’re afraid that just as there were witnesses for the theft, those witnesses—or others—will also testify that you slaughtered and sold. Maybe yes and maybe no, but maybe that’s not enough to exempt him from punishment. That’s exactly the point. Meaning, it’s always possible that maybe he also repented, even if he didn’t obligate himself in anything. But we need a positive indication that his confession has an element of repentance. Okay? And once you have a suspicion—maybe yes, maybe no—that’s already not enough to exempt him.

So everything Rav Hamnuna speaks about is in a case where there are already witnesses on the first part. We have good reason to suspect that if you now confessed to slaughtering and selling, you’re not doing that as a genuine penitent. Because if you were a genuine penitent, you would already have confessed to the theft from the outset. Why did you deny it there until the witnesses came? Right? You insisted. Suddenly now you become righteous and confess to the slaughtering and the selling—to having slaughtered and sold. There we have suspicions, and since we suspect the confession isn’t sincere, it won’t exempt you. But in the normal case, why should there be suspicions? A person comes and repents and confesses that he was a sinner, confesses that he ate pork. Okay? In such a case he really is a penitent. In fact, more than that: there the witnesses are already saying he stole, right? So really the witnesses told us he was a thief, not that he himself is telling us he is a sinner, right? He’s only coming to exempt himself from the slaughtering and selling—that’s his confession. So obviously we won’t exempt him. Fine? And therefore I think Rashi is not difficult in light of Rav Hamnuna either.

So he’s exempt? Obviously. What do you mean, witnesses for slaughtering and selling? If he confessed from the outset only to the theft—what about the slaughtering and selling? And afterward witnesses came—wait, what did he say about the slaughtering and selling at the first stage? That he didn’t slaughter and sell. Okay. And then witnesses came that he did slaughter and sell. So he’ll be liable? Yes. Obviously. Why should he be exempt? He didn’t repent regarding the slaughtering and selling.

Yes, but here you don’t have the witnesses in the middle that… So what? You have witnesses that make him liable for the slaughtering and selling, and there’s no reason to exempt him. Why do you want to exempt him? He didn’t confess there. He didn’t confess at all. Not only did he not confess and then witnesses came—he didn’t confess at all regarding the slaughtering and selling, so why should he be exempt? There is nothing to exempt him.

You wanted to explain the difference where witnesses came regarding the theft, and because of that you said maybe that’s the distinction between Rashi and Rav Hamnuna. Let’s remove the witnesses. Let’s take the witnesses out of the picture. If you take out the witnesses then… then it’s the same thing? No—let’s find a case where he confesses at first, and afterward… where there’s no suspicion that he did it insincerely. He really… Confession to the theft itself? Yes. He’s a penitent regarding the theft itself. But what about the slaughtering and selling? After all, he denied the slaughtering and selling; regarding that he didn’t repent. He repented about the theft, not about the slaughtering and selling. So from the theft he really will be exempt, but from the slaughtering and selling he won’t. Fine?

Yes, well, there’s room to hesitate a bit here, because in order to make him liable for the slaughtering and selling you need to know he stole. Right? Now if all you know that he stole is from his own confession, then in effect you don’t know he stole, because a person cannot make himself wicked. So if you don’t know he stole, what good is testimony that he slaughtered and sold? But that’s only a simple technical issue, it’s not… Say witnesses later came also regarding the theft. Fine? He confessed that he stole; afterward witnesses also came about the theft, not only the slaughtering and selling. So now I do know that he stole, right? Not from his own confession, but from the witnesses. So now I can indeed make him liable for the slaughtering and selling, because regarding the slaughtering and selling he didn’t confess at all. Fine?

So I think that is a natural distinction between Rashi and Rav Hamnuna. And then indeed it turns out that Rav Hamnuna does not contradict this general thesis of Rashi. Really, Rav Hamnuna also agrees that one who repents is exempt from every punishment. Specifically here, because his confession is a suspicious confession—because he does it only after witnesses have come—he denied the witnesses, and only after they came did he suddenly run to confess, so we are not willing to accept it. Because it is not genuine repentance. Okay? And then there is no contradiction to Rashi.

Ah yes, that’s Even HaEzel. Even HaEzel on Maimonides, Laws of Theft, says: why does the Talmud set up the case as one where he said “I did not steal,” and then witnesses came and said that he did steal? Why? Forget that he said he didn’t—just say witnesses came and said he stole. That’s all. They make him liable. Why do you need his initial denial? So you understand that this strengthens what I said before. In effect, that’s why Rav Hamnuna does not accept his confession to the fine. Because at first you denied. Not only because the witnesses came. What’s very important is that you said, “I did not steal.” Because that means you are not truly a genuine penitent. And now suddenly you run and tell me, “Yes, I slaughtered” or “I sold”? That’s suspicious.

If witnesses simply came and convicted him for the theft and he hadn’t even had time yet to say “yes, I stole” or “no, I didn’t,” I don’t know, witnesses came—then there too his confession didn’t obligate him in anything because there were witnesses, but there he may not be suspect. Even in such a case, it could be that he would be exempt regarding the slaughtering and selling. Not for nothing do they discuss it—look at Maimonides’ wording; we already saw it, and also the wording of the Talmud, it’s not only Maimonides. Right, exactly—he starts with the denial.

Yes, “How so, the confession and this…” But if he says, “I did not steal,” thereby exempting himself from everything, and then witnesses came, then he is no longer a penitent. The fact that afterward you run and confess to the slaughtering and selling does not persuade me. But if I simply come and say, “I ate pork”—I come and say, “I ate pork”—there are no witnesses, nothing, and I didn’t obligate myself in anything. Fine? I didn’t obligate myself in anything, but there is no reason to doubt that I’m a penitent. The fact is that I came of my own initiative and said I ate pork. Therefore that does not necessarily contradict Rashi.

But here in the Meiri, the Meiri says this: “Even in court, in the place of court, they said regarding theft that he is exempt only in a confession through which he obligated himself in some matter, such as when he comes before them and says, ‘I stole,’ for in any event he now makes himself liable for the principal. Since he obligated himself in something, if witnesses came afterward he is exempt even from the double payment, since he already made himself liable for the principal before the witnesses came. But if they claimed against him regarding theft and he denied it, and witnesses came regarding it, and afterward he himself confessed that he slaughtered, so that he should be exempt regarding the payment for the slaughtering, and afterward witnesses came regarding the slaughtering, he is liable for its payment. He confessed to the slaughtering only because he feared that witnesses would come, and now he thinks to exempt himself thereby from something for nothing.”

Here it’s already more explicit, right? He says: why, according to Rav Hamnuna, don’t I exempt him? Because I don’t believe his confession. The fact that you rushed to confess is because you’re afraid witnesses will come. We already saw the law of one who sees witnesses about to arrive—there, when he runs to confess, his confession to the fine will not exempt him. Okay? Because he saw witnesses on the way. Right? The Meiri is basically saying that the witnesses for the theft are like seeing witnesses about to arrive; it’s the same law. It’s for that same reason that his confession doesn’t exempt him—because the confession is not authentic. It may be that he’s doing it in order to escape punishment. So it’s really explicit here in the Meiri.

Now he continues: “We have already explained that the emancipation of a slave through injury to the extremities is a fine. Therefore, one who came to court and confessed that he blinded his slave’s eye—the slave does not go free, because setting the slave free is a fine, and if I confess, they do not impose the fine on me. And if witnesses came afterward, he does go free.” Yes—he does go free. Why? Isn’t one who confesses to a fine and afterward witnesses come exempt? He answers: “Because by his confession he exempted himself from nothing.” Since the initial confession didn’t obligate him in anything, as with Rav Hamnuna. Okay? That’s like Rabban Gamliel and Tavi; it really comes out of there.

Then he says: “And there are those who disagree with this, saying that this reason applies only in theft.” This reason of Rav Hamnuna was said only in theft. Why? What is special about theft? What does theft have that other things don’t? In theft there is the initial monetary dimension—or if you want, also the dimension of the double payment as a fine. The discussion of the theft itself is a discussion in which you denied, and then witnesses came. There Rav Hamnuna says that if your confession didn’t obligate you in anything, it doesn’t exempt you. But that is only in theft. In any other confession to a fine where there is no monetary dimension, there is only the fine—someone who confesses to half-damages as a fine, someone who confesses that his ox, being non-habitual, gored, or someone who confesses to rape or seduction and the fifty silver pieces, or someone who confesses to the thirty shekels for a slave—all those things involve no money at all, only a fine. In such a case, if you come and confess, you did not obligate yourself in anything. But even Rav Hamnuna would agree that such a confession exempts you from the fine, even though you didn’t obligate yourself in anything. Because all he said was only in theft. Fine? And the explanation is probably what I said earlier—that theft is exceptional.

“And they learned this from the fact that they did not answer this way when they challenged Rava from the incident mentioned regarding Rabban Gamliel,” and so on. Look also at his earlier wording; this is how the Meiri begins: “Even before a court and in the place of a court, they said regarding theft that he is exempt only with a confession by which he obligated himself in some matter.” He does not present it as some sweeping rule that a confession that exempts is only a confession that obligated him in something. “Regarding theft,” they said that the confession exempts him only if it obligates him—and that is only in theft. Fine? So it seems he says this according to the first explanation as well, not only according to the second.

In any event, “and if they had not established…” Rashi there on the previous page says: “If the slave had not brought his master to court before the first set came to testify, the whole set would have to pay the value of the slave, for they all sought to cause him loss, because the person himself was not made liable—because had he wished, he could have come to court and confessed and been exempt, for one who confesses to a fine is exempt, and freedom through tooth and eye is a fine.”

But he didn’t obligate himself in anything, so why is he exempt in the case of tooth and eye? Because that rule was said about theft, not about tooth and eye. Only with theft do you need to obligate yourself in something. And that is Rashi consistent with his own view, which we have already seen: according to his view, with all punishments, when you confess you are exempt, even though in all punishments the confession did not obligate you in anything. Okay? So all along you see that this is the approach.

And the students of Rabbeinu Peretz there on that Rashi also wrote as follows: “For the person himself would not be liable to such an extent, because if he had wished, he could have come to court and confessed and been exempt, according to the one who says that one who confesses to a fine and afterward witnesses come is exempt. But this is difficult,” the students of Rabbeinu Peretz ask, “for we conclude below that in the fine of tooth and eye everyone agrees that one who confesses to a fine and afterward witnesses come is liable, because he exempted himself with nothing. If so, the Talmudic discussion here is not in accordance with the practical law.”

I said that was one page earlier—that is Bava Kamma 74, and the passage is on page 75. To say that this discussion follows a view contrary to practical law, because according to Rav Hamnuna if someone comes and confesses regarding the tooth and eye of his slave, he is not exempt, because he didn’t obligate himself in anything, so it doesn’t exempt him. But Rashi was careful not to say that way. Why? There is no contradiction. Because all Rav Hamnuna said was only in theft. But in the tooth-and-eye case of a slave, even a confession that didn’t obligate him in anything exempts, because there is no concern there that this is not genuine repentance. And that’s what he says: “Therefore it seems that the reason is that as long as he has not stood in judgment, we do not consider the person as one already liable, even though he would not have been exempt through his confession once witnesses came.”

Meaning, he himself does not accept the distinction; he thinks the passages really disagree, and therefore in the end even in the case of a slave’s tooth and eye you need him to have obligated himself in something in order to be exempt, and there, since he didn’t obligate himself, he really will not be exempt. He doesn’t accept this distinction in Rav Hamnuna. But Rashi does accept it. Why? He has to accept it. Because according to Rashi, as we saw, his view is that confession in all punishments exempts you, right? So Rav Hamnuna doesn’t fit with that. Therefore he must say that Rav Hamnuna was speaking only about theft. But Rabbeinu Peretz, who apparently follows the accepted view that confession does not exempt you from all punishments, that it’s only a rule said about a specific fine, then the whole move is not a move about repentance or… less severe punishments, only fines, not death and lashes. In any event, Rabbeinu Peretz apparently follows the standard view, and he really doesn’t need to reconcile the rest of the Talmud with Rav Hamnuna, because fine—the confession truly doesn’t exempt.

Now, if so, for our purposes it comes out that it is definitely possible—though not the accepted view—to establish a position according to which repentance, or confession as repentance, exempts from all punishments imposed by a religious court, even by an earthly religious court. And everything written in our Talmudic passage is perhaps only after the verdict, or perhaps repentance of equivalent weight as Beit She’arim says—not repentance of equivalent weight, sorry, as Beit She’arim says—but in general repentance does exempt from punishment. And there is no difficulty from Rav Hamnuna and no difficulty from anywhere else. And that is probably Rashi’s view. Yes.

Now, this brings us back to the ordination controversy. The ordination controversy. Wool ordination. I already mentioned the ordination controversy, but this whole discussion brings us back there. Why? In the responsa of the Maharlbach, at the end, there is a treatise on ordination. The last section is the treatise on ordination. And that is the source from which we learn about all these views. The Maharlbach stood at the head of the opponents—the sages of Jerusalem. The sages of Tzfat wanted to ordain Rabbi Yaakov Beirav, including the author of the Shulchan Arukh—yes, including Rabbi Yosef Karo, all of them. They ordained Rabbi Yaakov Beirav. And after Rabbi Yaakov Beirav was ordained, he could also ordain others, because one who is ordained can ordain others. He ordained five of his students, including Rabbi Yosef Karo. Rabbi Yosef Karo himself was ordained. And the Maharlbach opposed this together with the sages of Jerusalem.

What is interesting is that in the end this was not accepted. Even the sages of Tzfat retreated. And the best proof of that is that you won’t find in the Shulchan Arukh anything about ordained judges. Laws not relevant today do not appear in the Shulchan Arukh. Now, if he himself was ordained, then those laws are relevant today, right? He should have written them in the Shulchan Arukh. They don’t appear. In the Beit Yosef he even writes in one place, at least in one place, “and nowadays, when there are no ordained judges, such-and-such laws are not practiced.” He himself was ordained—what do you mean, “nowadays there are no ordained judges”? So it seems quite clear that after their dispute with the sages of Jerusalem, in the end they apparently retreated. Meaning, it didn’t continue. It took, by the way, some time—a generation or so. There were still ordained figures who continued to function in Tzfat for another generation or two. But Rabbi Yosef Karo himself apparently already accepted in his own lifetime that he was not ordained and withdrew from it.

Now here the Maharlbach first brings what the sages of Tzfat said—the ones who wanted to renew ordination—and afterward he opposes them. So look: “The text written by the rabbis of Tzfat and their agreement: Sent to us, signed with their names and their fine peace and humility, for they all wished us as well to uphold this teaching with our signatures.” Yes, in the humility of the great sages of Tzfat, they wanted us too to sign with them on this document of ordination, though of course we are small—our little finger is thicker than their loins—expressions of humility like that. Nevertheless they wanted us to sign too. Okay?

“The people of God, the one people of God, a kingdom of priests and a holy nation,” all the poetry at the beginning there. “No prince, no mighty man, no man of war in the war of Torah, the wise charmer and the understanding whisperer have vanished because of our many sins, and the people of God are scattered and dispersed; all of us have gone astray like sheep, each has turned to his own way. Our iniquities have risen above our head. Day by day the crown of our head has fallen, our consecrated one has been profaned to the earth, and there is no prophet any longer teaching righteousness, and there is no one among us who judges fines and rebukes the wicked for his sin. And soon a man may come to God and say in his heart: ‘Why should I toil in vain? What gain is there if I fast, and go in blackness, and receive the forty lashes minus one, if this will not avail and will not stop the power of my karet, and my sin is ever before me and my disgrace will not be erased?’”

Yes—we have no ordained judges, no ruler, no prince, nothing. We basically have no institutions of authority, and among other things we have no ordained judges. And then what? All this is from the sages of Tzfat, not the Maharlbach. He is quoting the sages of Tzfat. They say that if so, the door of repentance has effectively been closed before people. What’s the point of repenting, they say to themselves? Even if I repent, it won’t help; the sin is not atoned for without lashes. So what’s the point of repenting? Therefore, say the sages of Tzfat, in order to solve this problem, we want to restore ordination and to administer lashes to people in court. Ordained judges can administer lashes. Simply receiving lashes won’t help. But if you are lashed by a court of ordained judges, then if you received the forty lashes, those forty lashes exempt you—those liable to karet who were lashed are exempt from their karet. Okay? So that exempts you.

Right. What? Yes. And this was in the wake of the conversos, because we are speaking about the sixteenth century. Fine—the conversos are the end of the fifteenth century. So following the conversos who converted and so on, there was concern that maybe this involved karet and similar things, so they said we need to allow them a path to repentance. Not that they can’t repent; they have no motivation to repent, because repentance will not help them without lashes. They need the lashes.

“That was what became for us a plague and a stumbling stone and a rock of offense, preventing return to God, grasping folly and wayward paths, and locking the doors of repentance. And who is he, and where is the man who bears the name of Israel and trusts in the God of Israel, who will say, ‘I am for God,’ and restrain himself in this matter and not let his eyes shed tears because the people of God have gone down to the gates? And now, for a brief moment, there has been grace from the Lord our God to leave us a remnant and revive us as this day, and He has brought us up from the pit of roaring exiles and destructions that coiled around our neck in the lands of the nations, and He has brought us to this place that He chose and to the city over which His name is called, and has given us a peg in His holy place. Therefore, upon all the words of this letter, we have risen and strengthened ourselves—we, the youngest of the flock who are on the holy land—to be zealous for the honor of God, for how can it be profaned… there is none who calls in righteousness and returns to God with all his heart.” Nobody repents, right? “And justice is absent in faithfulness. And we said one to another: be strong and let us strengthen ourselves in our land, the mantle of our God, and let us raise the banner of the Torah that has long been cast to the ground and trampled in the streets. Therefore we chose the greatest among us in wisdom and number”—how he is greatest in number I don’t know. Greatest in wisdom, yes. Two feet. He is greater, older in number of years. Okay. Yes, he was their rabbi. It’s true that he was older in number.

Fine. “The complete sage, the great rabbi, Mahar”i Beirav, that he be ordained and called head of the academy and rabbi. And he will seat by him the wiser among us, and they too will be called rabbis and be ordained forever, doing truth and uprightness, the judgments of Torah in adjudication, until when the wicked man is to be beaten and comes before them, they will strike him according to the Torah as much as his wickedness deserves, and he will be exempt from his karet.” And this will exempt him from his karet and bring him near to the God of eternity—apparently that’s what it should say—“and all this people too shall come to its place in peace.”

And that is what all the sages of Tzfat say. They basically want to restore ordination so that people can be lashed and helped to be exempted from karet. Yes, he is enthusiastic that this is very important, and so on.

Then he says: “The text of the first treatise comes to relate the praise of their awakening and how desirable their intention is.” Yes—your intention is desirable, you wrote wonderful things. “However, in practice their counsel is not good.” This is now the Maharlbach speaking. “Their counsel is not good, and by law there is no power to uphold their reasoning. I saw what the complete sages, the rabbis of Tzfat, wrote, and the sum of their words is that for the sake of the merit of the many in the generation who because of troubles and destructions violated covenant and transgressed law, and in order to heal their wound lightly, saying ‘peace, peace’ to the far and the near,” meaning to help them repent, “they agreed to act according to that ruling innovated by Maimonides of blessed memory and written in his Commentary on the Mishnah in chapter 1 of Sanhedrin.” Yes—that ordination can be renewed from nothing. That is Maimonides’ innovation. You hear? All the sages of the Land of Israel.

So he then basically argues: what did all previous generations do? What did all previous generations do? All those liable to karet throughout the generations—the accepted assumption in the Jewish people is that one needs to repent, right? And the assumption is probably that if you repent, you are atoned. Now suddenly the sages of Tzfat come and say no, there is no point in repenting, because without being lashed you won’t be exempt from karet. So what—all those liable to karet throughout the generations were cut off and that was that? It didn’t help that they repented? Because they weren’t lashed? “Those liable to karet who were lashed are exempt from their karet”—they learned that from the Talmud, from the Mishnah.

And so the Maharlbach says: wait a second, something here is not reasonable. Leave the sources aside for a moment. Something here is not reasonable. It can’t be that throughout all the generations people simply remained liable to karet and that was it—they were cut off, that’s it, no more. Why? Because technically there was no court to lash them, even if they repented—not only if they didn’t repent. Fine, but if it doesn’t help without lashes, then repentance doesn’t help you gain atonement without lashes. So what is that? Do what you can, and still be cut off—even as a penitent, you are still cut off. Fine—that’s what he says. It’s not reasonable. All the Jewish people until now were cut off; they are basically no longer with us. All those liable to karet among the Jewish people. Yes, it’s unreasonable. Something here makes no sense.

Ordained courts can’t give any punishment other than lashes? What? They can’t give punishment beyond lashes? I understand. They can’t give punishment beyond lashes? Maybe they can too—it’s not important right now. But still, a death penalty they can’t give, because you need a Sanhedrin in the Chamber of Hewn Stone in order to impose a death penalty. But lashes, yes.

So the Maharlbach argues: it cannot be. Repentance has to work. But if repentance works, then the opposite difficulty arises. When there were ordained judges, why would they lash? Let them repent and everything is fine. Right? Repentance alone also works; you don’t need the lashes for atonement. Well then, when there were ordained judges, let them repent—why would they be lashed? What do you need lashes for? More than that: the lashes don’t help without repentance. A person going to receive lashes must repent in order to gain atonement. So lashes don’t help without repentance. But the Maharlbach says that repentance does help without lashes, because the fact is that nowadays, when there are no lashes, repentance alone solves the problem. So what changed back then when there were ordained judges? Apparently repentance solved the problem then too. So why lash? Do you see that this brings us back to our discussion? Maybe really they didn’t lash. It could be that one who truly repented was not lashed. That is exactly the point—that is Rashi’s view, right? That if a person repents, he is exempt from punishment imposed by the religious court. Exactly so. All those they lashed in the past were only those who did not repent. But people who did repent—exactly so—they really were not lashed. At least before the verdict. After the verdict maybe it doesn’t help, but before the verdict, exactly so, they really were not lashed. They lashed only those who had not repented.

According to the Maharlbach this has to be so, because the Maharlbach argues against the sages of Tzfat: what are you trying to do? Why renew ordination and lash people? Let them repent—that also works. Well then, when there were ordained judges, why wasn’t that enough—that they repent? Why then did they lash? We are forced to say that they really did not lash if someone repented. They lashed only those who did not repent, that’s all. But if he repented, exactly so.

Except that this is not absolutely necessary, because there is another interesting logical loop here. At one point I collected several examples of this. There are a few examples in Jewish law where the very existence of a dissenting view changes the law. Not because that view is correct, but the mere fact that it exists changes the law. This is one of the examples. The Maharlbach argues against the sages of Tzfat: let’s say you’re right. Fine? Suppose you are right and ordination can be renewed. But I disagree, right? We, the sages of Jerusalem, disagree. And in your own view you are relying on Maimonides, who says you need the agreement of all the sages of the Land of Israel. Well, you don’t have the agreement of all the sages of the Land of Israel, and even on your own terms you cannot renew ordination. Not because you are wrong. Even if you maintain your own opinion that you are right, the mere fact that you did not obtain the agreement of all the sages of the Land of Israel means that even according to your own view you cannot restore ordination.

Now if that is the reason they retreated, then it doesn’t mean that in the end they accepted the Maharlbach’s arguments. Right? In effect, one who disagrees with Rashi against Rabbeinu Pinchas, or whoever we saw—maybe simply Maimonides. Maimonides, who says ordination should be renewed—that fits his own view, yes. So it could be that they really remained with the idea that in principle ordination can be renewed and should be renewed. Too bad—we didn’t succeed, the sages of Jerusalem didn’t agree with us. But that doesn’t mean we went back and admitted they were right. We don’t admit that. We only say: fine, but the very fact that they disagree prevents us from renewing ordination, because there isn’t the agreement of all the sages of the Land of Israel. There’s also a discussion there whether “the majority counts as the whole”—whether the agreement of the majority of the sages of the Land of Israel suffices, since most of the sages of the Land of Israel were in Tzfat. He too says—Mahar”i Beirav, I mean the Maharlbach, sorry—that we are the minority, meaning they are the majority.

And what about 1538—who ruled here? The Turks? Turks, yes. The Turks were here. I think so. But why does that matter?

And Maimonides in chapter 1 of the Laws of Repentance writes as follows: “All the commandments in the Torah, whether positive commandment or prohibition—if a person transgressed one of them, whether intentionally or unintentionally—when he repents and returns from his sin, he is obligated to confess before God, blessed be He, as it is said: ‘When a man or woman shall commit… they shall confess their sin that they have done’—this is verbal confession. This confession is a positive commandment. How does one confess…” and so on. “Likewise those liable to sin-offerings and guilt-offerings, when they bring their sacrifices for their inadvertent or intentional sins, they are not atoned for by their sacrifice until they repent and confess verbal confession, as it is said: ‘And he shall confess that wherein he has sinned.’ And likewise all those liable to court-imposed deaths and those liable to lashes”—not only in cases of inadvertence, but also intentional sins—“are not atoned for by their death or their flogging until they repent and confess. Likewise one who injures his fellow or damages his property—even though he paid him what he owes him—he is not atoned for until he confesses and returns from doing such forever, as it is said, ‘from all the sins of man.’”

Now here, by the way, he is speaking about repentance, not specifically repentance of equivalent weight. Here he is speaking about inner repentance: “they shall confess their sin,” confession, regret, inner repentance, not repentance of equivalent weight.

Returning to our issue, what he is saying is that lashes, for example, won’t exempt you from karet without repentance together with them. Apparently lashes are indeed required, because Maimonides probably does not accept Rashi—again, in his own view. Maimonides probably argues that repentance does not exempt you from lashes; in order to be exempt you need both. And therefore the sages of Tzfat, who followed Maimonides’ view—and renewing ordination is also Maimonides’ view—wanted to restore ordination. Why? So they could administer lashes, because repentance alone is not enough. You need repentance and lashes.

But the Maharlbach argues like Rashi, who says: either repentance or lashes. Repentance alone also suffices, and therefore there is no reason to restore ordination. It’s neither right to restore ordination nor necessary, and the motivation to restore ordination is unnecessary, because one can attain atonement even without it. Okay, so each one basically follows his own view.

Yes, and then the Maharlbach says further in the treatise: “And I still need to elaborate more fully on this, and first I found it necessary to investigate the explanation of one thing, namely the explanation of this Mishnah which says that they are exempt from their karet—those liable to karet who were lashed are exempt from their karet. Is it possible that the explanation means that they are exempt by the lashes even though they did not repent, or does it refer specifically to a case where they repented and through repentance are exempt together with the lashes?” Right? “Those liable to karet who were lashed are exempt from their karet”—does that mean lashes alone, or lashes and repentance? Fine? You understand that this is really the root of the dispute.

He says: “For we find in Rabbi Moshe ben Maimon an apparent difference between what he wrote in his legal ruling on this and what he wrote in his Commentary on the Mishnah. In the Commentary on the Mishnah he wrote that it is clarified at the beginning of that chapter and at its end that specifically together with repentance one is exempt from karet.” Fine? Both repentance and lashes. “And so it is explicitly in the Talmud at the beginning of that chapter according to Rabbi Akiva. But in his legal ruling, in chapter 17 of the Laws of Sanhedrin, he did not mention repentance at all, and this is his language: ‘Anyone who sinned and was lashed returns to his fitness, as it is said: ונקלה אחיך לעיניך—“then your brother shall be degraded before your eyes.”’”

Now again, with Maimonides, of course—exactly—this contradiction in Maimonides is only apparent. When you speak about whether he returns to legal fitness, that’s a discussion in the laws of testimony. In the laws of testimony we already saw that the court takes repentance into account. Okay? So if he repented, he returns to fitness. The question whether repentance is also required in order to… wait, sorry, no—it’s the other way around. In the Laws of Sanhedrin he does not mention repentance: “Anyone who sinned and was lashed returns to his fitness.” But regarding exemption from punishment, there Maimonides says you need both repentance and lashes, that you need the two together, as we already saw, right? Also in the Laws of Repentance we saw that you need both. Therefore Maimonides, as we saw in the Laws of Repentance, writes that in order to gain atonement you need both repentance and punishment. Okay?

And in the Laws of Sanhedrin, when he speaks about returning to validity as a witness, there he says that if he was lashed then he returned to fitness. Fine? So that means the Mishnah in Makkot, which says that those liable to karet who were lashed are exempt from their karet, does not prevent Maimonides from interpreting it as karet plus repentance. And that is what he explains in his Commentary on the Mishnah to that Mishnah. There is no contradiction with what he says in the Laws of Sanhedrin.

So this is not connected to what I said earlier about returning to fitness. Regarding returning to fitness, repentance also helps, not only lashes. But lashes alone also help, and repentance alone also helps. Lashes alone help because of ונקלה אחיך לעיניך—he has returned to fitness. Repentance alone helps because the court can determine that the person repented; it can assess whether the person repented or not, and for returning to legal fitness that’s enough, that’s good enough. But regarding atonement or exemption from punishment—from karet, for example, or something like that—there you need both, both the lashes and the repentance. And if that’s so, then fine, that’s regarding karet.

As for actual court-imposed death penalties, then the question is whether that helps regarding death penalties. Later he discusses suffering and lashes, which really enters into the discussion of Beit She’arim, but I don’t think I’ll get into that section here, because it’s a long discussion and less important for our purposes.

So if I summarize for a moment, then in the end it comes out like this: until now we have seen that repentance helps with heavenly punishments, but not with punishments imposed by a religious court—that is the simple view in Makkot. We saw three or even four explanations why that is: the Chida, the Noda B’Yehuda, and two explanations of the Maharal. We then saw two possibilities for why this is not true—that repentance does help one escape punishments imposed by a religious court. One is Beit She’arim, who says you need repentance of equivalent weight, and what is written that repentance does not help refers only to inner repentance, but repentance of equivalent weight does help. The second possibility is the position of Rashi, which we saw consistently: he says that even repentance alone, inner repentance without repentance of equivalent weight, also helps, and everything written in the Talmud that repentance doesn’t help refers only to a case where the repentance comes after the verdict.

We saw in Rav Hamnuna that this is true not only after the verdict but in general anywhere that the repentance does not inspire confidence in us—that the confession does not inspire confidence in us that an act of repentance is involved—there it really will not exempt. In a place where we do have that confidence, then exactly so, it really will help.

Good. We’ll stop here. Up to this point we’ve finished the issue of the… of the…