Q&A: Execution by a Religious Court
Execution by a Religious Court
Question
Peace be upon you, our rabbi and our doctor.
As is well known, a religious court is commanded with the commandment of court-imposed execution for one who has incurred it, and I, the humble one, ask: where did the prohibition of bloodshed that appears in the Torah disappear to in this situation?
Thank you, and have a flourishing day.
Answer
I understand that the question is directed to me in my two hats: the death penalty as a rabbi, and the prohibition of bloodshed as a doctor. A mechanic friend once told me that I’m a doctor who doesn’t know how to cure anything.
As for your question: it didn’t go anywhere; rather, it is overridden by another value (deterrence and eliminating evil and criminality). Just as healing a patient can involve causing suffering (surgery), and the law of mamzer status makes miserable people who committed no crime, and the commandment of war costs human lives.
Discussion on Answer
This has nothing to do with a positive commandment overriding a prohibition or with other rules of override. Here the Torah explicitly says, “those who desecrate it shall surely be put to death,” and by that the prohibition of murder is nullified in these cases. Rules of override are said only where both principles are in force and they clash with one another. Where the Torah itself has already decided the matter, the rules of override are completely irrelevant.
The rules of override are learned and generated from what the Torah said. Just as the Talmud wanted to derive the overriding of a prohibition carrying karet from Passover, the continual offering, and circumcision. You are right that the rules of override, which are a “derivative” of Torah law, are not relevant here, but the very nullification of the prohibition of murder should teach us what the rules of override are. Yet there is no reference to this in the Talmud at all.
I thought perhaps more in the direction that Tosafot explained that levirate marriage is its commandment specifically in that way, and therefore it does not teach other cases; and seemingly court-imposed execution too is its commandment specifically in that way. But Tosafot does not mention at all raising a difficulty from court-imposed execution.
Thank you very much, and have a good day.
Questions like why the Talmud or Tosafot didn’t ask something are not strong in my eyes. You can always say that indeed they could have asked it there too. But if you insist, one could explain that in killing a Sabbath desecrator, or anyone liable to execution, there is no override but complete permission. The prohibition was never stated there at all, and therefore nothing can be learned from there about a positive commandment overriding a prohibition. Specifically, in levirate marriage there is a prohibition of marrying one’s brother’s wife, except that it is overridden by the commandment of levirate marriage. In killing a Sabbath desecrator there is simply no prohibition against killing him. His life has no halakhic value. On the contrary, there is an interest in eliminating evil.
But as I said, all this is hair-splitting. We’ve exhausted it.
Thank you. Once you wrote that in your view there is no difference between conceptual Talmudic analysis and philosophizing. What does “hair-splitting” mean in your view?
Have a peaceful Sabbath eve.
See column 52.
Good evening.
As I understood it, you are not wearing either a rabbinic hat or a doctoral hat, and I definitely had no interest in directing this question to any of those metaphorical hats, but rather to your analytic Talmudic side.
As for healing abilities, it should be said that just as the mechanic “heals” vehicles, so too you “heal” people of their problems of faith (based on your own remarks when the trilogy was published, that there are indeed people whose faith is strengthened through your philosophical teaching).
You know the topic of a positive commandment overriding a prohibition, and you know that only an ordinary prohibition is overridden by a positive commandment, whereas more severe prohibitions are not overridden (except for those listed in the Talmud that are derived specifically). Therefore it is not really applicable to say that the prohibition is overridden; rather, from the outset it was never stated in such a case. So my question is: from where do we know this secret, that the prohibition somehow flew away and does not apply from the outset? And the examples can be answered, but we are dealing here with the category of Talmudic analysis.
Thank you very much, and may it be a month of abundant joy 🙂