Volume 26 Number 82
Produced: Sat Jul 26 23:37:01 1997
Subjects Discussed In This Issue:
Administrivia
[Avi Feldblum]
Jewish View of Capital Punishment (2)
[Chana Luntz, Frank Silbermann]
Mikvah and Respect for Couples
[Russell Hendel]
Toras Hayoledes: correction
[Joel M. Guttman]
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From: Avi Feldblum <feldblum@...>
Date: Sat, 26 Jul 1997 23:32:40 -0400 (EDT)
Subject: Administrivia
Hello All,
My apologies for dropping off-line for the last two weeks or so. I hope
I am back on line now and you will be getting mailings starting to come
now.
Avi Feldblum
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From: Chana Luntz <heather@...>
Date: Sat, 5 Jul 1997 23:51:09 +0100
Subject: Jewish View of Capital Punishment
Eli Clark <clarke@...> writes:
>My own view is an intermediate one. Rabbi Bleich is no doubt correct
>that one cannot make facile analogies from one justice system to
>another. One who concludes that the death penalty is justified in,
>e.g., U.S. courts (or state courts) because "the Torah says so," is
>plainly being simplistic. At the same time, as Mr. Vanderhoof notes,
>Noahide courts are themselves enjoined to enforce the death penalty.
>Rabbi Bleich notwithstanding, I am somewhat dubious that every Noahide
>court is required to adopt every relevant halakhic principle in carrying
>out its duties.
Eli has openned up discussion on the subject of whether we ought to
support a completely non Jewish society adopting capital punishment.
But there is also another issue to be considered anywhere that is not a
pure non Jewish society (and the only society that springs to mind that
is truely Judenrein is Saudi Arabia). In a country such as the US, one
has to consider the fact that if one supports the death penalty being
applied to non Jews, then, as the laws are applied equally, one is by
definition also supporting the application, by the non Jewish state and
the non Jewish courts, of capital punishment being applied to Jews.
This issue is related to one that is discussed extensively in the
poskim.
The Yerushalmi (Trumos 8:4) brings the case in which a group of Jews are
surrounded by non Jews, and the non Jews demand that they surrender one
of their number, or all will be killed. And the gemorra states - that
even if all of them will be killed, they should not hand over one soul
in Israel. But if one of them is a person like Sheva ben Bichri they
can hand him over and not be killed. Resh Lakish says: only if he is
liable for death like Sheva ben Bichri, but Rav Yochanan says even if he
isn't liable for death like Sheva ben Bichri.
The Rambam poskens (Hilchos Yesodei Hatorah 5 halacha 5) like Resh
Lakish (yes there is some discussion about why this is so - see the Beis
Yosef Yoreh Deah 157 d'h "tnan") - ie that if they demand a particular
person, and he is liable for death like Sheva Ben Bichri they can give
him to them, but if not, then they can't (but they shouldn't do so
l'chatchila).
The Rema brings Resh Lakish as a yesh omrim [alternative opinion] in
Yoreh Deah siman 157 si'if 1 - and this appears to be the opinion
followed by various achronim.
Now what does being liable for death mean? Although it would seem to
include treason (which after all, was the crime of Shimon Ben Bichri
against Dovid HaMelech - and which interestingly, the Taz extends to the
non Jewish king), it would seem doubtful that it includes a situation
where the person is liable for death under the non Jewish laws, but not
under our laws (cf a teshuva from the Rosh (8,10) which indicates the
lengths one can go to try and save somebody who was liable for the death
penalty under the non Jewish laws, but not under Jewish law (in the case
in question, it was for having relations with a non Jewish woman)).
Now,the basis for this dicusssion centres around the situation where a
person's life is threatened if they do not hand over the malafactor to
the non Jewish authorities. A more complicated question is whether one
can hand over a Jew to be put to death by the non Jewish authority if
one's life is not being threatened by that authority (there is a fair
amount of discussion in this, cf the Taz for a view which may permit
such a handing over).
But it seems to me that getting back to the issue at hand, if one were
actively to support capital punishment in, say, the US where lots of
Jews live, we are combining the worst of these scenarios.
Say, for example, one were to vote to bring in capital punishment, and
then a Jew was arraigned for trial under this law. Would not every Jew
who had so voted be liable for having handed over this other Jew to be
killed by the non Jewish authority? Without there being any question of
threat to one's life?
And even if you hold that it is permissible, l'chatchila, to hand over a
Jew who is guilty of a crime to the non Jewish authority - what everyone
seems to agree is that it needs to be a crime that is as clear as that
of Sheva Ben Bichri. Given that the non Jewish system is not as careful
about evidence (using circumstantial evidence etc) as halacha - one has
to allow for the fact that a certain number of people are going to be
wrongly accused and convicted, and in a society that includes Jews, that
is going to include Jews. Dinnei Mamonos this is not a problem, because
it is accepted that under Dina D'malchusa Dina, a non Jewish authority
has authority over monetary matters. And likewise imprisonment would
seem to be within their power. But the power to kill? That seems to be
exactly what is not permitted (on pain of one's own self being killed)
in the above sources, unless it is absolutely clear that the person in
question is liable for death under our laws in any event.
The only argument I can see against this line of reasoning is that at
the time one votes or acts to bring in the death penalty, the crime for
which the penalty is being imposed has not yet been committed - and the
Jew who is killed for that crime might not even be born (and certainly
not known to the person doing the act). ie maybe the result is too
remote from the action. However, the handing over of someone so that
they might be killed is also causative - so it is not clear to me where
that causative chain ends (telling the authorities where a particular
person is appears to be another aspect of the matter - see the
discussion in the Beis Yosef). And if in fact it is forbidden for a non
Jewish authority to put to death Jews in circumstances where such Jews
could not be put to death under halacha - presumably the matter can also
be classed as lifnei iver (lifnei iver applies to non Jews) which by
definition is causative (and if it is your vote that is needed to bring
in the law then presumably it can be classed as the opposite side of the
river for lifne iver purposes?).
I would be interested if anybody has any thoughts on this line of
thought.
Regards
Chana
<heather@...>
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From: Frank Silbermann <fs@...>
Date: Tue, 8 Jul 1997 21:05:40 -0500 (CDT)
Subject: Jewish View of Capital Punishment
Eli Clark <clarke@...>:
> It is safe to say that there are at least two views (on the
> Jewish view of capital punishment for non-Jews by non-Jews).
> Mr. Vanderhoof suggests that capital punishment may be "a fulfillment
> of the non-Jews' obligation, under the seven commandments of the
> descendents of Noah, to establish just courts and to enforce the
> prohibition of murder, which applies to non-Jews and is punishable by
> death (according to the 7 commandments)."
>
> (Rabbi J. David Bleich rejects this view altogether.) He claims
> that the halakhic sanction for capital punishment cannot be
> divorced from the halakhic justice system.
I was going to cite halacha's exception in that a king may put
individuals to death without consulting a Bet Din during times of great
lawlessness, but then I suppose Rabbi Bleich would say that this would
only hold in a kingdom run according to the Rambam's halacha wrt Jewish
kings. Still, I have a number of questions about Rabbi Bleich's
interpretation.
If halacha doesn't sanction the death penalty in secular courts, then
which secular laws divorced from the halachic justice system _do_
receive halachic sanction? What should be a Jew's response to _any_
proposed secular law in a court divorced from the halachic justice
system?
Should each of us do what appears right in our own eyes, individually,
wrt such issues? Or should Jews refuse to get involved in secular
political issues in general?
If halacha doesn't sanction our support for the death penalty, does it
sanction our _opposition_ to gentile enforcement of the Noachide laws?
If so, should we oppose _any_ secular law that is divorced from the
halachic justice system (and become anarchists until the coming of
Moshiach)?
Frank Silbermann <fs@...>
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From: <rhendel@...> (Russell Hendel)
Date: Tue, 8 Jul 1997 20:07:40 -0400
Subject: Mikvah and Respect for Couples
I would like to second Rachel Shamah's recent statement about the need
to be careful in extending unnecessarily the time when women can go to
Mikvah. Neither Rachel nor I are asking that anyone abrogate any
halachah. But we are asking that no chumrah's be "created" unless they
are already there.
Rachel already brought up the theoretical point that such unnecessary
extensions may lead the couple to sin or breaking up. I should also
point out that even if it doesn't go that far it may lead to fights and
unnecessary bickering and affect their friends and children. But to
emphasize Rachel's point that lives can be ruined I would like to cite 3
stories (one Biblical).
* Rabbi Manus Friedman recently told of a couple that started crying
when they heard about the marital separation laws. When he inquired he
found out that their (orthodox) Rabbi double crossed them--they asked
for a completely orthodox wedding and the Rabbi did not advise them
about the laws of family purity. When Rabbi Friedman asked this Rabbi
why he responded "I didn't think they were the type".
* G-d is known as merciful and just and as not punishing children for
parents sin. It is therefore a sign of great wrath when G-d curses a
family and all its descendants for the acts of the parents. One of the
few such cases in the Bible is the "Sons of Eli" incident: Sam 1 2:22-3:19
The Bible relates that for monetary selfish reasons they pushed up the
times of sacrifices (so they could have their share) which resulted in
women sinning with their husbands (exactly Rachel's concern). The Biblew
accounts as if they themselves had slept with them (Sam 1 2:22--emphasis
on the "nun" of yishcuvoon)--and they and all their descendants were
punished!
* In a related sphere (Rabbis inteferring with peoples economic vs
marital life thru Chumrahs) I recently heard in the city I reside in, a
Rabbi get up at a public gathering and "confess" to misusing the laws of
"intruding on ones neighbor's boundaries" to prevent someone from
setting up a competing grocery store or pizza place in his part of town
because another congregant of his already had such an establishment (The
Rabbi refused to give Hashgachah for the Kashruth). As a result the
second congregant (Who had just moved in) had to declare bankruptcy (The
Rabbi said he is never going to intefer with peoples personal economic
lives again).
I think these stories are sufficient to show that real harm is being
done to people thru unnecessary chumrahs by Rabbis who don't think of
the consequences of what they do. I would personally like to see a few
Mail Jewish issues devoted to similar stories. Perhaps those Rabbis who
"abstain"from such practices can tell us how they have avoided it.
Russell Jay Hendel; RHendel @ Mcs . Drexel . edu
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From: Joel M. Guttman <guttman@...>
Date: Thu, 24 Jul 1997 18:52:22 +0300
Subject: Toras Hayoledes: correction
About a 1.5 months ago, I wrote a brief posting responding to a comment made
by Moshe Rayman in Mail-Jewish regarding the sefer, Toras Hayoledes. Moshe
had written that the sefer had discussed the possibility of a yoledes (woman
about to give birth) riding a bicycle to the hospital on Shabbos rather than
riding a car. Since I have a copy of the sefer and also am acquainted with
the senior author of the sefer, the highly regarded Rav Yitzchak
Zilberstein, Rav of the Ramat Elchanan neighborhood in Bnei Brak (and also
son-in-law of Rav Eliashiv), I was very surprised to hear that such a
strange suggestion appeared in the sefer. After looking for the discussion
in my copy and not finding it, I (too hastily, as it turned out) wrote a
posting stating that the discussion of the bicycle riding does not appear in
the sefer. In addition, Moshe wrote that, in an appendix to the sefer, Rav
Moshe Sternbuch had written a criticism of the sefer, stating that it
contained stringencies that are *forbidden* to observe in life-threatening
situations in Shabbos. My copy contains no such appendix, and this lead me
to ask, in my posting, if Moshe had even read the sefer he had criticized.
I must now correct my earlier statements, after Moshe has clarified the
situation in private communications to me. Moshe has (apparently) an
earlier, presumably the first, Hebrew edition of the sefer; mine is a later
edition. Moshe's copy came with a separate booklet with responses and
criticisms of the sefer by several eminent Rabbonim, including Rav
Sternbuch. My edition has no such booklet appended to it, though selected
comments by other Rabbonim, with the authors' comments, do appear in
footnotes within the sefer. The booklet appended to Moshe's edition does
indeed contain the criticism that Moshe had cited, together with a response
by the authors. In addition, after Moshe pointed out the place of the
bicycle riding discussion in his edition, I found it in my copy.
The discussion is a theoretical discussion of whether it is preferable to
ride a bicycle or a carriage to the hospital on Shabbos, discussing the
various melachos involved in these two modes of transportation. It seems to
me that the authors assumed that readers would understand for themselves
that the discussion is purely theoretical, and that, in reality, riding a
bicycle is out of the question because it can cause a miscarriage. The
question is whether this assumption is valid. Rav Sternbuch questions the
validity of such assumptions. To quote Rav Sternbuch (Moshe faxed me the
relevant discussion from the booklet in his possession), ""Toras Hayoledes',
if it were written as a sefer of notes (ha'aros) and theoretical
investigations (chakiros), and if it were given over to Rabbonim only, would
be an exceedingly wonderful sefer, since it contains a wealth of information
that is needed by the Moreh Horoah, but since it is [in fact] given over to
every person, I am concerned that it will lead, Heaven forfend, to
stringencies and stumbling blocks in the area of pikuach nefesh, about which
Chazal said, whoever asks [halachic questions] about pikuach nefesh [in an
actual life-threatening situation] is to be derided (meguneh). And our
Rabbonim z'l directed that in matters of pikuach nefesh one should always be
lenient, and everything that begins as a stringency and ends up being a a
leniency is not a [correct] ruling, and therefore if one is stringent
(machmir) in these matters he is being lenient in the law of pikuach nefesh,
which is the greatest of all mitzvos (she'ain lecha mitzva komoha)."
The authors responded, "The words of the ga'on sh'lita were before our eyes
and also, on the other hand, we received a note from one ga'on sh'lita that
there are leniencies in the book, which would have been better not to be
publicized, and for these reasons we wrote that we did not come to decide
practical halacho but rather only to point out problems that are liable to
come up, and that one must ask a Moreh Horoah before the actual birth
process takes place, and that the purpose of our discussions is to prevent,
as far as possible, unnecessary chilulei Shabbos, but that when the birth
process has begun without the proper preparations having been done [by
asking the necessary questions], it is necessary to do everything as quickly
as possible in order to avoid entering a dangerous situation..."
I hope these lengthy quotations clarify the whole matter. I must, in any
case, apologize for my overly hasty previous posting.
Joel M. Guttman
Department of Economics
Bar-Ilan University
52900 Ramat-Gan
Israel
Phone: 972-3-531-8925 (office); 972-3-578-3502 (home)
Fax: 972-3-535-3180
E-mail: <guttman@...>
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End of Volume 26 Issue 82