Question

Hello Rabbi. I am writing בעקבות reading the Rabbi’s article on this topic and the related posts, which were, by the way, very interesting—thank you very much.
I thought of an idea to resolve the question raised by the later authorities (Acharonim) as to why repentance would not help a person avoid punishments imposed by a religious court, and also the contradiction in Maimonides’ words on this issue. If the Rabbi has time, I would be happy to hear his opinion (and I hope he will also find something of interest in what I wrote).
I thought it is very plausible to distinguish between repentance before the obligation of punishment takes effect and repentance after the obligation has already taken effect. That would mean that with regard to punishments imposed by a religious court, such as death or lashes, repentance would help before the verdict is finalized, but not afterward, since as is known in obligations of this kind, the liability is created only upon the final verdict in court (see for example Jerusalem Talmud Ketubot 3:10 and Rabbi Akiva Eiger’s glosses on Makkot 5a).
The reasoning is this: repentance of course does not reveal that there was never any sin here in the first place; rather, it uproots it retroactively (what is sometimes called in the yeshivot “from now on and retroactively”). Based on this, it makes sense to say that although the punishment is for the sin, nevertheless once the obligation has taken effect, it no longer depends on the continued existence of the sin. So even after the sin has been retroactively uprooted, the obligation itself still stands. This is similar to the reasoning Rabbi Chaim wrote in his book in Hilkhot Ishut ch. 2, where he established the concept of retroactive uprooting: that the retroactive annulment of a marriage through refusal does not remove what the husband had already acquired in produce, etc. Obviously, with regard to uprooting the obligation itself, it makes sense that repentance should not help at all, since repentance is about uprooting sins, not uprooting obligations toward a religious court. Similar to the fact that repentance does not help exempt one from sins between one person and another. In other words: the sin is only a condition for creating the court-imposed obligation, but once the case has been handed over to them, the law no longer depends on the sin at all, and the court no longer has the authority to waive this obligation—as the Talmud says, “the court does not forgive him.” From that very phrase it is evident that the punishment is an obligation toward the court, not toward Heaven. It seems likely to me that from a halakhic standpoint there is no requirement that the punishment must still have something left to atone for in order for the punishment to be administered, even though it can atone.
From this, it seems that everything is resolved: the Talmud in Makkot is speaking after the final verdict (see below), and likewise Tosafot in Yevamot regarding someone whose father became liable for lashes (they say one can find such a case), and likewise Maimonides in the Laws of Repentance is speaking after the final verdict (“those liable”), and in all those cases repentance does not help exempt him. By contrast, Maimonides and Migdal Oz in the Laws of Idolatry are explicitly speaking before the final verdict, and then repentance does help. True, the view of the Raavad, who disagreed with Maimonides there, still requires explanation. But look at his wording: “I did not find that repentance is effective after warning and the act,” and it seems that this is exactly the point he came to emphasize—that his objection is that repentance does not help immediately after the act, whereas according to Maimonides this is only at a later stage.
However, regarding the Talmud in Makkot, one can discuss what the relevant moment is with respect to the law of “according to his wickedness”: is it the time of the act that creates liability, or the time of punishment? It seems that according to what Rabbi Chaim established (in the stencil on Ketubot 32b), that the law of “according to his wickedness” is a rule about the court’s punishment and not an exemption that inheres in the situation itself, it seems simple that the relevant time is the time of punishment. A sharp expression of Rabbi Chaim’s principle is found in Tosafot Rid on Bava Metzia 91a, who explains that under “according to his wickedness” he is not exempted from the lashes, and if he has nothing to pay they lash him—see there. And see Rashi there in Makkot, who wrote: “But those liable to death are not included in lashes, because here there are two punishments—lashes and death—and if he is lashed, in the end he will be killed, for even if he repents, the earthly court does not forgive him the death penalty.” One might ask why Rashi found it necessary to emphasize “and if he is lashed,” but according to what I wrote it is resolved: Rashi came to explain that the relevant moment is the time of punishment, like Rabbi Chaim, and therefore he cannot exempt himself from death through repentance. Presumably, by the time they want to lash him, his death sentence has also already been finalized.
But despite all this, I have difficulties with my own approach, and also with the position of Beit She’arim (and the Rabbi, who made a similar distinction), from two Talmudic passages that seem to show that repentance does not help:
A. The Talmud in Ketubot 31a raises a contradiction between the Mishnah at the beginning of “These Maidens” there and the Mishnah in Makkot mentioned above, regarding rapists and seducers who are liable for prohibitions: in Ketubot it is explained that they pay the rape or seduction fine, while in Makkot it is explained that they receive lashes. The difficulty is why the rule of “according to his wickedness” should not apply, and the Talmud there offers several answers. From the end of the passage on 35b it seems that there are apparently no additional possible answers if one does not accept Rabbi Yohanan’s opinion that those liable to lashes who acted unintentionally are exempt, and see Rabbi Chaim’s novellae on the Laws of the Virgin Maiden ch. 2, where he inferred this (see there, where he brought proof in the style of what I am saying). Now the question arises: why didn’t the Talmud answer that generally he is lashed, but in the Mishnah in Ketubot we are dealing with a case where he repented and was exempted from lashes? This question is difficult both according to my approach, since it could be established as a case where he repented before the final verdict (and this is not such a forced interpretation, since the Talmud in Makkot on this very Mishnah mentions the possibility of repentance as a consideration in how the Mishnah is formulated), and according to Beit She’arim, who would explain it as repentance together with suffering.
(I thought perhaps one could say that even if he repented, he is still included in the category of “those liable to lashes who acted unintentionally,” and therefore would be exempt from monetary liability according to those who disagree with Rabbi Yohanan. But besides the fact that one can respond on logical grounds that someone who repented is less comparable to the unintentional case—see Rabbi Akiva Eiger’s novellae in Ketubot 30b, where he suggested that those liable to death who acted under compulsion are not included among those liable to death who acted unintentionally, because in such a case there is no prohibition at all, and all the more so in our case; and see there in Shitah Mekubetzet in the name of the Old Method, who took the same position as Rabbi Akiva Eiger, though apparently not for the same reason, and one could still discuss this claim according to his position, but this is not the place—even so the question would remain, because one could establish the Mishnah in a case where his monetary liability had already been adjudicated but his liability to lashes had not yet been adjudicated. A simple case for this would be, for example, according to Rabbi Ishmael at the beginning of Sanhedrin, who requires twenty-three expert judges for lashes but not for monetary matters. According to that, based on the Talmud in Makkot 13a mentioned above, he would be obligated in the monetary payment, since he could still exempt himself from the lashes through repentance. And it is not plausible to say that that discussion there applies only according to the view that those liable to lashes who acted unintentionally are exempt, because there it is Rabbi Akiva, who is a tanna, whereas the question of those liable to lashes who acted unintentionally is a dispute among amoraim. And it is also difficult according to the straightforward explanation brought there by Ritva in the name of Nachmanides, that this is not at all derived from the law of “according to his wickedness.”)
B. The Talmud in Sanhedrin 71b discusses a case where a gentile blasphemed the Name and then converted: is he exempt from death by virtue of the principle “the law changed, so the punishment changed”? According to Jewish law, he remains liable. See there in the passage that the whole discussion is specifically where the death sentence has not yet been finalized. Although I do not know whether this is absolutely necessary, still, on the face of it, when he comes to repent as part of the acceptance of commandments required by many halakhic decisors for conversion, he must also repent of this sin of blaspheming God. This is not mentioned at all in the passage, and there are baraitot there with similar cases in which the law is that he remains liable, and the limitation does not appear that this is only if he did not properly repent as part of the conversion. This question, of course, applies only to my approach and not to that of Beit She’arim.
Afterward I saw Tosafot there: “It is difficult: if Rabbi Hanina’s statement follows the tannaim who dispute this in Ha-Holeitz (Yevamot 48b): Why are converts afflicted at this time? Because they did not fulfill the seven commandments that the descendants of Noah accepted upon themselves. This implies that they are punished. And Rabbi Yose says there that a convert who converts is like a newborn child, and they are not punished at all. Another difficulty is that the passage here does not accord with either view, for we say: if one did this as a Jew, he is liable. But according to Rabbi Yose, he is like a newborn child. It seems one must distinguish: the entire passage here deals with human courts, whereas there it deals with heavenly judgment.” From their words it is clear, based on the Talmud in Yevamot, that even though in heavenly judgment all his sins are forgiven, nevertheless in human courts he is not exempt—and apparently repentance should not be better than that. And see the responsum of Havot Ya’ir, sec. 79, on Tosafot’s words: “The matter may be sweetened nicely, for the idea that a convert who converts is like a newborn child is because accepting the yoke of Torah and commandments atones for all the abominations against God that he did [for we are speaking about a convert who, as a gentile, denied the Creator of the world], just like full repentance—as if he had done that act as a Jew and then repented. Therefore his conversion will not help him in a matter for which he is liable to death by a religious court, just as repentance would likewise not help a Jew.” Apparently from all this there is a refutation of the whole idea that repentance would help with court-imposed punishments, in every version of the theory.
Perhaps I can explain why Tosafot disagree with my approach based on what Havot Ya’ir asks there at the beginning of the responsum: we do not find someone liable to punishment in human courts who does not also have a claim against him in heavenly judgment, as the Talmud asks in Sanhedrin 82b. He wrote that one can distinguish: in Sanhedrin 82b, the point is that from the outset there was no liability in heavenly judgment, whereas here he had already become liable both in human courts and in heavenly judgment, except that the heavenly liability was later forgiven. Perhaps the explanation is that Tosafot disagree with my assumption that the obligation is created only at the time of the final verdict, and instead hold as Rabbi Elhanan Wasserman wrote in Kovetz Shiurim, part 2, sec. 13, pars. 4–5: “It seems… that in truth liability for a fine takes effect immediately from the time he caused the damage, just as with monetary liability… but with a fine, his punishment is that the court compels him to pay… and the fact that he is exempt from discharging his heavenly obligation before the final verdict is not because he is not yet obligated, but rather even though he was already obligated immediately upon causing the damage, the punishment is that the court compels him to pay, and if he pays without court, his punishment has not thereby been fulfilled…” See there, where he proved this from medieval authorities. That also seems to explain Tosafot in Makkot 5a, who explained the Talmud there differently from Rabbi Akiva Eiger in the glosses mentioned above. According to this, it is understandable that repentance does not help, because he already became obligated to the court’s punishment immediately at the time of the act, and therefore all of the above follows.
(By the way, I came to the Havot Ya’ir responsum above through Rabbi Yosef Engel’s comments in his marginal notes there on Makkot 13a, where in his usual style he elaborated greatly and brought many sources that seem very interesting on this issue of repentance as a way to avoid court-imposed punishments, though I have not yet had time to study them.)
Incidentally, I wanted to note that it is not clear to me how Beit She’arim’s approach resolves the passage in Makkot 13a, where he wrote that repentance of equal measure is a more severe wickedness than lashes and therefore he is not lashed. But repentance of equal measure is a wickedness not handed over to a court, and therefore it is not included in the scriptural decree of “according to his wickedness,” as is explained later in that passage.
From the Rabbi’s words in one of the posts I understood that additional proofs have come up for the Rabbi on this matter. If the Rabbi could mention the sources so that I can look into them, I would be very grateful.
Thank you in advance