Spare the Rod?
Corporal Punishment in Judaism
We all know that the Torah’s prescribed punishment for many of the transgressions of its laws is the administration of thirty-nine lashes. But this was only the case so long as there existed an established Beis Din authorized to mete out such punishments. This article addresses certain punitive measures that were actually implemented at various points much later in Jewish history, revisiting the eras and places where this took place.
The Original Beis Din with Semicha
Even after the Sanhedrin of twenty-three judges, who were empowered to rule in capital cases, ceased functioning forty years prior to the destruction of the Second Beis Hamikdosh, the lower-level Beis Din of three certified and ordained judges dating back with an unbroken chain to Moshe Rabeinu, did continue. Although they could not rule on the death penalty, they were, nevertheless, able to order malkos-floggings, enforce the payment of official fines, and rule on other matters such as leap years.
This continued until the end of the Yishuv (settlement) in Eretz Yisroel a few generations after the destruction of the Beis Hamikdash. When that happened, the “Semicha,” the transmitted power to ordain that began with Moshe Rabbeinu, tragically ended. How, then, was it possible for physical punishment and coercive measures to continue to be employed by Jewish courts of law?
Rabbi Eliezer Ben Yaakov’s Statement
The basis for these methods to remain in use is to be found in a statement of the Tanna, Rabbi Eliezer Ben Yaakov, who reported:
I heard that Beis Din can hit and punish even in a way not prescribed in the Torah. This is not even in order that one should not transgress the laws of the Torah, but rather, even just to create a protective fence around the laws of the Torah.
We see, then, that although there are punishments such as the death penalty and Malkos prescribed by the Torah when certain laws are transgressed, there remains a great amount of leeway for Beis Din to take punitive and coercive measures when necessary.
In Extenuating Circumstances
Furthermore, in certain situations where the Torah is being vilified and its laws trampled upon, Beis Din reserve the right to act according to how it sees fit for the reestablishment of societal order and the buttressing of Beis Din’s authority. The Shulchan Aruch states clearly, “Every Beis Din, even if they are not under the original Ordination in Eretz Yisroel, if they perceive an infraction in the laws of the Torah, and it is the call of the hour to act decisively, they may do so in all forms including monetary as well as physical, even circumstantial evidence is enough.” The Shach and Sema add that this can be done without prior warning.
Horse Riding on Shabbos – Stoning
Let us begin with the Gemara in Sanhedrin (46a), which records a story that took place during the period of heavy Greek influence in Eretz Yisroel, around the time when the story of Chanukah occurred.
It so happened that someone rode a horse on Shabbos in the days of the Greeks. He was brought to the Beis Din, and they sentenced him to be stoned to death. This was not because this was what he deserved, but rather, because this was the need of the hour.
A rabbinic rule was already in place forbidding riding an animal on Shabbos, out of concern one might be prone to rip off a tree branch for use in prodding the animal. Perhaps the severity of the punishment meted out, in this case, can be understood in light of the times, in which Greek culture was sweeping over the entire world, posing a major challenge to the Jews of Eretz Yisrael as well. Fealty to the Torah sages served as the major bulwark against this Greek cultural imperialism, and thus a failure to adhere to rabbinic law necessitated an unusually harsh response.
The Gemara in Maseches Niddah (13b) and Maseches Sanhedrin (58b) records that the great Amora Rav Huna, once ruled to have the hand of a transgressor chopped off because, as Rashi explains, this particular person was prone to hitting people. Although the Gemara derives this approach from a certain pasuk, the true basis of authority for dispensing this kind of punishment must lie in the power of Beis Din, as noted above, to mete out punishments were deemed essential.
Positive Mitzvos – Death Penalty!!
Furthermore, we find that although positive mitzvas, known as “Mitzvos Asay,” do not carry any punishment for their non-fulfillment, with the exception of Bris Milah and Korban Pesach, coercion of any sort may be applied to force a Jew to perform any of these mitzvos, such as tefillin, succah, matza, lulav and more.
Falsifying a Document – Chained
The Gemara in Maseches Bava Basra records a story in which a person showed the sage Abaye a document stating that someone had sold him “a third of his field and his orchard.” The vendor, on the other hand, vehemently denied this arrangement, insisting, “I only sold him a third of the orchard! This man is lying. He falsified the document!” Abaye took a closer look at the document and realized that the buyer had indeed falsified the document.
When confronted, the buyer obstinately held his ground. Abaye, seeing no other option available to him other than threatening the man into an admission of guilt, ordered the suspected liar to be tied up in ropes and chains until he confessed his forgery.
The Finger on the Trigger
Moving from the Talmudic era to that of the Acharonim, we find that the Eisenstadter Rav, who was one of the foremost Poskim of his
time and is quoted extensively by the Pischei Teshuvah and many other poskim, discusses in his work Panim Me’eros two cases involving the use of physical coercion. In one case, someone found his safe smashed open and a huge amount of money gone. There was much circumstantial evidence clearly pointing to a household servant as the culprit. The question posed was regarding the amount of pressure that could be exerted to elicit a confession by the alleged thief.
Another halachic query brought before him involved someone who had deposited precious gems with a merchant. When he sent his servant to fetch them, the merchant sewed the stones into the servant’s clothing. Yet when the servant arrived home, the stones were nowhere to be found, with the servant claiming that they had gotten lost. The question was again whether a certain amount of physical pressure could be applied to bring the servant to confess and to serve as a deterrent to others from engaging in thievery.
The Panim Me’eros brings a number of proofs and concludes that it is permissible for the Beis Din to assess if indeed there is a reason to suspect the household servants of these crimes. He supports this approach with a story he heard from his uncle about how the great Gaon, Rabbi Heschel of Krakow, threatened an alleged thief.
Rabbi Shabsai Kohen, the renowned Shach, had a golden chain that he gave to his Rebbe, Rabbi Heschel, for safekeeping. It happened that a servant of the household set his eyes upon it and stole it, and although Rabbi Heschel was convinced that the servant was guilty of the theft, he could not prove it. He decided to threaten the servant in order to intimidate him into admitting his guilt. He took out a gun and aimed it at his servant, warning him to give up the stolen goods. The tactic was unsuccessful at that point, but a year later, Rabbi Heschel’s suspicions were vindicated when the stolen item was found amongst the servant’s items.
The Panim Me’eros also cites another proof of the acceptability of physical coercion where warranted, from the introduction of Shlomo Hamelech to the thirty-first chapter of Mishlei/Proverbs. He begins with the words, “The word of King Lemuel, the prophecy that his mother disciplined him” referring to his virtuous mother Bas Sheva. It should be noted that Shlomo Hamelech referred to her approach in appreciation rather than dismay. Indeed, according to many commentaries, the “Aishes Chayil” composed by Shlomo Hamelech in the very next chapter of Mishlei refers to his own mother.
The Gemara quotes Rabbi Yochanan in the name of Rabbi Shimon ben Yochai, that when Shlomo Hamelech deserved it, his mother would tie him to a post and even strike him if necessary. Rashi elaborates that “when his mother saw him indulging in excessive pleasures and grand meals, she would chastise him.”
Mar Zutra Chasida
The following story is a rather famous one, recorded in the Gemara: After a silver vessel was stolen from the possession of Mar Zutra, he happened to witness a student wiping his wet hands on the garment of his friend. When Mar Zutra noticed this behavior, he declared, “It is him! One who behaves in this way demonstrates that his friend’s property means nothing to him!” The Gemara concludes that “they bound him” and the suspect admitted to the theft.
There may be a disagreement among the commentators as to the type of coercion that was used. According to Rashi, who as mentioned earlier, understands the binding Shlomo Hamelech underwent in a literal sense, here too, when the Gemara refers to “binding” it may mean the suspect was coerced physically to confess. The Shita Mekubetzes, however, cites one commentator who explains the word “binding” here to mean “verbally forced” or threatened with excommunication were he not to admit guilt.
In summary, it is clear from all of the foregoing rulings of Chazal that it was an accepted practice for the Beis Din to apply certain “extra-judicial” coercive measures where the administration of justice required it. We see this from Abaye’s method of dealing with the falsified document and from Mar Zutra Chasida’s approach to extracting an admission from a likely culprit. From somewhat earlier in our history, we have Queen Bas Sheva, who disciplined her son, sometimes physically as well. As mentioned before, Shlomo Hamelech extolls upon this behavior with the highest accolades.
It is clear that physical coercion must always be a last resort, to be used only once other means have been exhausted. Even when it is to be used, however, says the Panim Me’eros, it should be done carefully and with the utmost discretion. Therefore, he writes, one should never employ a gentile to do this for him because there is a great chance that personal animus, sadism or anti-Semitism could play a role in the degree of physical force the non-Jew uses, whereas a Jew will employ only the amount of force allowed by the Shulchan Aruch.
The Panim Me’eros remained uncomfortable permitting this course of action on his own, writing that he would sanction it only upon the agreement of three other great men – or as he describes it “Torah erudite men, who fear Hashem and are not enticed by money.”
We do, however, glean from the responsum of the Panim Me’eros another important observation. Nowadays, it is considered improper, and in some countries illegal altogether, to possess firearms or other weapons without a special license. Yet this story indicates that it was quite normal when this teshuva was written to have weapons available when needed.
In the modern era, we are used to the idea of being protected by the government and its police force. Indeed, the Mishnah in Maseches Avos advises, “Pray for the peace of the government because if not for the fear of its force, men would swallow each other alive.”
While nowadays we are grateful to Hashem for the protections afforded by our benevolent government, this was not always the case. It was therefore vital to possess protective gear and arms and to be trained to use them when necessary.
There are in fact photos depicting clearly Jewish men in the Polish garb of the times, bristling with armor. This leaves us with no doubt that bearing arms was the norm.
As is the case today, when in many cities there are volunteer neighborhood patrols such as “Shomrim,” this was also often true in the past. The Jewish quarter of a city was guarded by paid Jewish guards which were welcomed by the governments since it relieved the latter of the responsibility for the Jews’ security.
However, unlike today, where these watchmen are largely unarmed, carrying nothing more lethal than a two-way radio or pepper spray, in earlier times, the guards were armed to the teeth. Oftentimes, this was the sole protection that the whole Jewish community had in the face of marauders and bandits, which succeeded in saving countless lives. There are even special parameters set forth in the Shulchan Aruch (Orach Chaim 329), to ensure these watchmen remain a viable protective force on Shabbos and Yom Tov as well.
In summary, we can conclude with two important lessons to be gleaned from the sources we have discussed:
The great men of our people shuddered at the thought of using force unless there was no other choice and its use was absolutely vital. When that is the case, there is a sanction in Halacha for its use in limited circumstances.
It was so important in the days of old to have means of protection and defense in the form of arming oneself. Boruch Hashem this is by and large a thing of the past now that we live under the protection of benevolent governments.