Q&A: Minchat Chinukh on the Condemned City
Minchat Chinukh on the Condemned City.
Question
Maimonides rules that in the case of a condemned city, they also kill the children of those who worship idol worship there. The Minchat Chinukh asks that if so, then witnesses testifying about a condemned city could not be punished with “as he conspired,” since you cannot kill their children (“him but not his offspring”). If so, this is testimony that cannot be refuted through plotting witnesses.
My rabbi answered that the conspiracy regarding the killing of the children is not a conspiracy against the idol worshiper himself, but rather against the children as “children of an idol worshiper in a condemned city”; and if so, the witnesses conspired to kill several people, and that is all. (This is not similar to witnesses testifying that someone is the son of a divorced woman, where the disqualification of profaned lineage in the children is a consequence of the disqualification in the father.)
I am not entirely sure I would accept that answer even aside from Maimonides in the Laws of Repentance (chapter 6, law 1), where he says that part of reward and punishment in this world is exacted from a person in his body, his property, and his minor children—that minor children are like a person’s property. If so, the difficulty returns to its place, since they conspired to harm his property in the form of his children, and with regard to them you cannot carry out their conspiracy.
I wanted to know whether, in the Rabbi’s view, one can bring proof from Maimonides in the Laws of Repentance—that is, whether Maimonides writes, even in the non-halakhic sections, only points from which one may draw precise inferences.
Answer
Simply speaking, one can bring proof, although a litigant could disagree. It is also not clear that these are aggadic statements.
But on the actual issue, I am not sure there is a proof even if one may derive proof from aggadic material. What Maimonides writes in the Laws of Repentance is that, in principle, punishment is exacted from a person through his children (for example, for the sin of vows his children die), but that does not mean that in a condemned city as well, when his children die, it is a punishment upon him. It may be that there there is specifically an obligation to eradicate them, and not a punishment upon him.
But regarding the question itself, I do not think it is necessary to get to what your rabbi said. According to the Minchat Chinukh’s approach, how do we accept testimony that someone is the son of a divorced woman? After all, it cannot be refuted through plotting witnesses. The lashes are themselves the implementation of “as he conspired” (and not merely lashes for “you shall not bear false witness”; otherwise the testimony could not be accepted, because it cannot be subject to refutation). If so, one can also say that the killing of the children in a condemned city is indeed a punishment upon the father, and nevertheless this testimony can be refuted through plotting witnesses, since the refuted witnesses would be flogged like witnesses in the case of the son of a divorced woman. One should note, however, that here the lashes are in place of death, and not in place of a personal status like that of the son of a divorced woman, and perhaps in such a case that would not count as “as he conspired.”
Discussion on Answer
Regarding the Rabbi’s rejection of the challenge to the answer: when Maimonides writes the source for the idea that his children die for his sin, he writes that concerning those punished it says “men,” and they are not men. That is, therefore there is no reason for them to die other than their father’s sins. It is proven that a child is never killed because of himself at all, but only because of his father.
A. That is what I wrote. But there is no necessity to reject the position of one medieval authority on the basis of another medieval authority.
I did not understand your rejection of my rejection. The claim is that the children in a condemned city are not being punished; rather, there is an obligation to eradicate them from the world. So either it is a punishment because of their father, or it is an obligation to eradicate them that is not a punishment. Beyond that, Maimonides there, on the matter of death because of vows, is speaking about punishment from Heaven. In a condemned city these are punishments of a religious court.
All right, I won’t go on at length.
A. I am not rejecting the position of one medieval authority on the basis of another medieval authority; I have proofs in Maimonides himself that he does not hold that the lashes come because of “as he conspired,” but rather because of “you shall not bear false witness” (there are proofs from explicit Talmudic passages, and it is almost an explicit Mishnah).
As for the rejection, I will phrase it differently: Maimonides writes there that a person’s minor children are his property, and therefore harming them (even though it is at the hands of Heaven) is harming him. Therefore, when the witnesses conspired to kill his children, they conspired to harm his property in the form of children, and you cannot harm their property in the form of children.
So it does not matter for what reason you harm his minor children—you are harming his property.
Regarding the Rabbi’s answer:
A. According to Tosafot’s second answer in the first passage in Makkot, one cannot say this because of “a life for a life”; that is, lashes are not enough to punish for liability to death.
B. If we accept the Minchat Chinukh’s forced answer, or any other answer that sets up some possible case-definition for testimony about a condemned city, then even according to Tosafot’s first answer this is no answer. For in the case of the son of a divorced woman, the witnesses are flogged only because there is no possible way at all to obligate them under “as he conspired” for that testimony, and therefore they fall under the law of lashes. That is not so in the case of a condemned city, where according to the possible answers there is a way to carry out “as he conspired” with them.
The answer that seemed plausible to me in this matter is that the witnesses can claim that they did not come to make the defendant liable under the laws of a condemned city, but rather came to make him liable to stoning like any idol worshiper, and the non-necessary circumstances brought the reality into the category of a condemned city.
My rabbi challenged me, though, that according to this, the witnesses would receive death by stoning even though the defendant was judged with the sword, and after all it has already been said: all plotting witnesses are advanced to that same death, except for plotting witnesses against the daughter of a priest. And these would not receive the death of the defendant.
And I answered: A. We do not derive from general rules, even when the rule says “except.” B. One can distinguish between plotting witnesses against the daughter of a priest, who knew and conspired exactly which death she would receive and yet they are killed by a different death, whereas in the case of a condemned city it is not inevitable that the city will be judged as a condemned city.
P.S. I do not know whether the Rabbi wants to get drawn into this whole conceptual discussion at all. My main question was about deriving from aggadic statements in Maimonides, and that was answered. Thank you.