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Is Violence Ever a Valid form of Tochachah?

By Rabbi Joshua Flug

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Introduction-The events in Beit Shemesh do not represent the first time where violent acts were used against other Jews because of their beliefs/actions, but hopefully will be the last. This shiur outline will address halachic and hashkafic approaches to the use of violence as a form of tochachah or preventing someone from violating a prohibition. The first two sections were adapted from the shiur outline on Halacha and Democracy Part II and are just as relevant to this discussion. The Mitzvah of Tochacha a. The Torah states that there is a mitzvah to rebuke one's fellow Jew for violating an aveirah. {} b. The Gemara states that the mitzvah requires that one continually rebuke, even if the violator doesn't accept the rebuke the first time. {} c. The Gemara also states that just as there is a mitzvah to say something that will be accepted, there is also a mitzvah to remain silent when it won't be accepted. {} How does one resolve this idea with the ruling of the Gemara that tochachah must be performed multiple times? i. R. Yosef ibn Chabib (Nimmukei Yosef 14th-15th century) writes that it depends on whether one is in private or public. If one is in private, one must rebuke multiple times. If in public, one must remain silent because it is prohibited to embarrass the violator. {} ii. Rambam (1138-1204) does not codify this halacha. iii. R. Shaul Yisraeli (1909-1995) explains that there are two approaches to the mitzvah of tochachah. The first is Rambam's approach that the purpose is to bring the violator back to observance of the mitzvah (or mitzvos)- }{ .The second approach is Nimmukei Yosef's approach that there is a value in rebuking violators, even if they will not return. The Torah expects us to rebuke others for their wrongdoings regardless of the outcome. According to Nimmukei Yosef, we don't rebuke in public because the mitzvah of tochachah doesn't override the prohibition against embarrassing others. However, Rambam doesn't codify the statement to remain silent because according to Rambam, it is obvious that any rebuke that is counterproductive is not proper rebuke. {} [The source sheet contains select paragraphs of R. Yisraeli's piece. Click here to access the entire piece.] d. R. Avraham I. Kook (1865-1935) discusses the relationship between tochachah and arevus. Is arevus a sub-category of the mitzvah of tochachah or is tochachah a function of a broader concept of arevus? He suggests that it is contingent on a dispute between Rambam and Rabbeinu Asher (discussed in the shiur outline on Kavod HaBriyos). {}

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Can we ever force people to perform mitzvos?

a. The Gemara states that if someone refuses to perform one of the mitzvos, he can be forced to perform the mitzvah, even through physical force. {} b. Radvaz (d. 1573) discusses a situation where the Jewish authorities had the means of compelling someone to keep a certain mitzvah, but they were concerned that by doing so, the individual will completely leave Judaism. He rules that one cannot treat this person differently simply because of the concern that he may leave Judaism because it conveys a message that the mitzvah is not important. He also notes that they can't ignore this individual because of the obligation of arevus (and tochachah). {} c. There is a discussion among the Acharonim as to whether the mitzvah to compel someone else to perform a mitzvah is incumbent on beis din or on every individual: i. R. Moshe Sofer (1762-1839) writes that there are two types of mitzvos that are subject to compulsion: {} 1. Chukim includes anything relating to ritual law. Each Jew has a responsibility to ensure that other Jews keep mitzvos. To the extent that an individual can compel another to observe a mitzvah, he has an obligation to do so. 2. Mishpatim includes enforcing punishment and legal matters. This can only be performed by a beis din. ii. R. Aryeh Leib Heller (Ketzos HaChoshen, 1745-1813) writes that all compulsion is in the jurisdiction of beis din. The only way to compel anyone to perform a mitzvah is through beis din or its agents (now that we don't have semicha, beis din acts as an agent of the original batei din). {} iii. R. Ya'akov Lorberboim (Nesivos HaMishpat, 1760-1832) writes that compulsion is an obligation on each individual, whether to ensure that he fulfills a mitzvah or to prevent him from a transgression. {} iv. R. Yosef Babad (1801-1874, Minchas Chinuch) sides with Ketzos HaChoshen, but admits that even Ketzos will agree that while there is no obligation to compel others, it is permissible (i.e. optional). {} v. R. Meir Simcha of Dvinsk (1843-1926) writes that compulsion is only applicable because it is a means of preventing the person from violating a transgression. If one knows that compulsion will not prevent the transgressor, one cannot compel. The only time a beis din is necessary is to either punish or to compel something that requires actual ratzon to perform the mitzvah, such as with gittin. {} vi. R. Kook notes the opinion of R. Eliezer of Metz (d. 1175) that nowadays when we don't have semicha, beis din cannot compel someone to cancel debt at the end of the shemitah year. {} R. Kook notes that this opinion is applicable to any type of compulsion that has a negative consequence for the person who is being compelled. {}

vii. R. Yisraeli notes that one can understand the opinions that require a beis din based on the nature of the mitzvah of tochachah: 1. According to Rambam, the purpose of tochachah is to convince the violator to return to the path of Torah. 2. According to Rabbeinu Nissim (1320-1380), compulsion to perform a mitzvah is not to force the individual to perform a mitzvah, but rather for him to do it willingly. {} 3. According to R. Meir Simcha, compulsion requires a beis din when the goal is to perform a mitzvah willingly. 4. If one puts these three opinions together, tochachah only requires compulsion if it is going to return the individual to the path of Torah and even then, it must be done under the auspices of the beis din. {} IV. Is it permissible to use violence to prevent someone from violating a prohibition? [Please note: we leave it up to the presenter to decide which sources are appropriate for his audience.] a. The Gemara presents a dispute whether a person can take the law into their own hands ( .) The case is that someone is owed money and they have a chance of obtaining it by force or by going to the beis din. The Gemara states that if going to the beis din will cause the plaintiff a loss (e.g. the plaintiff is nervous that by the time the matter is taken to beis din, the defendant will not have the funds to pay), everyone agrees that one may take matters into one's own hands. They disagree if there is a need to go to beis din when the plaintiff doesn't stand to lose. {} b. The Gemara tries to prove that one can always take matters into one's own hands from a Beraisa that discusses an eved Ivri who refuses to leave after his term is up. The Beraisa states that if the master uses force to get him to leave and causes a wound, the master doesn't have to pay. This seems to prove that one is not required to go to beis din to have him removed. This proof is countered in two ways: {} i. The eved is starting to steal objects from the house. ii. The eved, who is now free, is no longer permitted to live with a . The master is trying to hit him to prevent him from violating a prohibition. c. There is a dispute among the Rishonim regarding how to understand the Beraisa. i. Rashi (1040-1105) suggests that the entire discussion in the Gemara is about taking one's own matters into one's own hands. However, everyone agrees that it is permissible to take someone else's matters into one's own hands. Therefore, since the slave's issue with the is not really his own matter, he can use force to remove the slave from the house. {} ii. Rambam writes that if the master wounds him he is exempt. {}

1. Netziv (1816-1893) suggests that perhaps Rambam doesn't allow one to wound the eved and the discussion is only about whether one has to pay if one took matters into one's own hands. {} 2. Rambam writes that the Mashiach is going to force all Jews to follow the Torah. {} R Aharon Lichtenstein (Leaves of Faith Vol. II, pg. 88) quotes R. Ahron Soloveichik that this implies that compulsion by an individual is either prohibited or inappropriate until the times of Mashiach. iii. R. Yisrael Isserlin (Terumas HaDeshen 1390-1460) discusses a case of a woman who is cursing her parents and whether the husband can use force to stop her from doing this. He notes that ordinarily, hitting one's wife is a serious prohibition, just like hitting anyone else. However, because of the severity of the violation of cursing one's parents, one may use force to stop such a prohibition if the violator is living in one's house. This is similar to the eved who won't leave. Since he is still living in the master's house and violating a prohibition, the master can use force to stop him. {} 1. Note that when Terumas HaDeshen uses the term , it doesn't mean that there is a halachic ownership or auspicies. The case of the eved is one where the eved is already free and yet he is because he is living in the master's house. iv. Shulchan Aruch discusses the case of two people who are in a fight: {} 1. If they are both responsible for the fight, they must pay for the damage that they inflict on each other. 2. If one person started the fight, the second person is entitled to fight back and is not responsible if the damages the initiator. 3. If a third party sees a fight, he is permitted to hit the aggressor in order to end the fight in order to prevent the aggressor from violating a prohibition. a. Rama compares this to the case presented in Terumas HaDeshen and codifies Terumas HaDeshen's psak. b. R. Yehoshua Falk (1555-1614) notes that Tur quotes two different cases. The first is someone who sees that their relative is being hit. The second is a non-relative being hit. {} Why does he quote both cases? R. Falk suggests that one can only use force to prevent a prohibition if it is totally for the sake of heaven. If one is so dedicated to the mitzvah of tochachah, then one can use force in certain extreme situations. However, if one is not, then one must be concerned that the force in this situation is not for the mitzvah of tochachah but because one hates the other individual or needs to get out some

aggression and it is prohibited. The one exception is when a relative is being hit. In that case, one can assume that one's intentions are to save the relative and it is permissible. {} c. R. Shlomo Luria (Maharshal, 1510-1573) doesn't limit the right to use force to someone who is . However, he places other limitations on this: {} i. It must be a last resort. All other forms of tochachah were attempted and this is the only way. ii. It must be someone who has an impeccable reputation as an . We can't allow ordinary individuals to do this because it can be ruinous to society if each person decides on their own to do this to others. iii. This doesn't have to be a but he must be of similar stature. iv. Mahrashal notes that these limitations only apply to . If someone is the victim of an attack, one can use force to defend the victim. v. To summarize: According to some opinions, there are certain situations where halacha does allow use of force to prevent a prohibition. However, these situations are rare because they are reserved for serious infractions. According to Terumas HaDeshen, it is only warranted in one's home as a last resort. According to Maharshal, it is reserved for special individuals and also as a last resort. V. Other Considerations- For more sources, there is shiur by R. Reuven Brand on yutorah.org and the source materials are available here. a. The consequences of Violence when people hide behind religion. i. Netziv suggests that the churban bayis sheni was because people murdered other people for religious reasons. Any time someone had a differing opinion, they would assume that the person was an apikorus and cause his death ( }{ .) 1. Netziv writes that people have an innate sense of yosher and when there are people who distort yosher, it is clear that they are the ones at fault. It is similar to someone who eats something dangerous, we don't blame the digestive system for being inadequate to handle it. The digestive system has an established track record of handling food properly. Rather, the cause is the dangerous food. So too, when people distort yosher, we can tell that they are the anomaly. {}

b. R. Avraham Y. Karelitz (Chazon Ish, 1878-1953) writes that the halacha that a mumar may be killed indirectly doesn't apply anymore. It only applied in the days where there was nevuah and clear hashgacha pratis such that anyone who didn't follow the ways of the Torah was certainly rebelling against God and trying to destroy society. However, nowadays, these types of acts don't advance society, they hurt society. The way to deal with people nowadays is with , and try to gently get them to return. {} c. The effect that violence has on the individuals who carry it out. i. R. Chaim ben Atar (1696-1743) writes that those who carry out wiping out an get a beracha of because such a cruel act makes a person into a cruel and violent person, even if it is for the purpose of fulfilling a mitzvah. Therefore, God has to give them a special beracha to counteract it. {} ii. Netziv has a similar idea regarding Pinchas. Because he was engaged in an act of violence, he was given a bris shalom to counteract it. {}

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