Shabbat Parashat Ki Tetzei| 5766
Beit Din’s Ability to Punish Beyond the Letter of the Law - Harav Yedidya Kahane
We have seen in the last weeks that we do not practically have the ability to renew authentic semicha, which would allow dayanim to form a beit din with full authority. Therefore, it is not possible to levy penalty payments, not when judging by force and not even when the sides approach beit din voluntarily. So too, a contemporary beit din cannot carry out capital or corporal punishment (dini nefashot u’malkot), as these also require full semicha.
However, there is a different halachic channel through which beit din has the ability to punish. The gemara in Yevamot (90b) raises the matter as follows. “R. Elazar Ben Yaakov said: ‘I have heard that beit din may flog and punish not [according to the rules of] the Torah … in order to make a protection for the Torah.’ There was a story of one who rode a horse on Shabbat in the days of the Greeks, and he was brought to beit din,which executed him with sekila. This was not because he was fit for [such a punishment] but because the times required it. There was another case… and they flogged him… because the times required it.”
We find a similar phenomenon regarding monetary payments. “A certain person stole a pair of ox from his friend and used them to plow and to sow a field. At the end, he returned the ox to their owner. They came before Rav Nachman. He said: ‘Go, estimate how much appreciation there is [in the field, as a result of the ox’s work].’ They said to him: ‘…But it is theft and it is returned intact [in which case, there is no additional payment]’…He [Rav Nachman] responded: ‘Didn’t I tell you that you should not tell me anything when I am sitting in judgment. This person is a veteran thief, and I want to penalize him’” (Bava Kamma 96b). In other words, the extra payment of appreciation was extra-legal.
Acharonim explain that there are two basic categories of circumstances under which a beit din may carry out a judgment which is not mandated by the normal rules of the Torah. One is “when the times require it.” In other words, it may be appropriate when there is a dangerous laxness in a certain area of halacha or when there are other external factors that make a forbidden action more dangerous. Such punishment can be carried out even if the violation was committed only once.
Another factor is the background of the person who is punished. If one has a history of trying to get away with a certain violation, in part because he feels that he will not face negative circumstances, it can be appropriate to levy some type of extra-legal penalty. In such cases, there need not be acute public needs that justify the unusual judicial steps.
Next week, we will look into the source of the concept of punishment beyond the letter of the law and discuss what type of beit din can carry it out.
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