4

In Mishneh Torah, Rotzeach uShmirat Nefesh 4:10, there is a halacha which is clearly (and thankfully) not practiced, at least as it relates to the surface reading of the halacha:

הָאֶפִּיקוֹרְסִים וְהֵם עוֹבְדֵי עֲבוֹדָה זָרָה אוֹ הָעוֹשֶׂה עֲבֵרוֹת לְהַכְעִיס אֲפִלּוּ אָכַל נְבֵלָה אוֹ לָבַשׁ שַׁעַטְנֵז לְהַכְעִיס הֲרֵי זֶה אֶפִּיקוֹרוֹס וְשֶׁכּוֹפְרִין בַּתּוֹרָה וּבַנְּבוּאָה הָיָה מִצְוָה לְהָרְגָן. אִם יֵשׁ בְּיָדוֹ כֹּחַ לְהָרְגָן בְּסַיִף בְּפַרְהֶסְיָא הוֹרֵג. וְאִם לָאו הָיָה בָּא עֲלֵיהֶן בַּעֲלִילוֹת עַד שֶׁיְּסַבֵּב הֲרִיגָתָן. כֵּיצַד. רָאָה אֶחָד מֵהֶן שֶׁנָּפַל לִבְאֵר וְהַסֻּלָּם בַּבְּאֵר. הָיָה מְסַלְּקוֹ וְאוֹמֵר הֲרֵינִי טָרוּד לְהוֹרִיד בְּנִי מִן הַגַּג וְאַחֲזִירֶנּוּ לְךָ וְכַיּוֹצֵא בִּדְבָרִים אֵלּוּ:

It is a mitzvah to kill minim and apikorsim*. The term minim refers to Jewish idolaters or those who perform transgressions for the sake of angering God, even if one eats non-kosher meat for the sake of angering God or wears sha'atnez for the sake of angering God. The term apikorsim refers to Jews who deny the Torah and the concept of prophecy. If there is the possibility, one should kill them with a sword in public view. If that is not possible, one should develop a plan so that one can cause their deaths. What is implied? If one sees such a person descend to a cistern, and there is a ladder in the cistern, one should take the ladder, and excuse oneself, saying: "I must hurry to take my son down from the roof. I shall return the ladder to you soon." Similarly, one should devise other analogous plans to cause the death of such people.

In plain terms, it would seem that the Rambam is saying that it is a commandment, if a person is able, to kill a person with a sword, or if not to at least try to devise a plan to cause them to die, on the basis of whether they deny the divinity of the Torah and prophecy.

Needless to say, there are many Jews who do not believe in this. And not just the tinok shenishba but there are many who were raised with these beliefs and for intellectual reasons concluded that they disbelieve in the divinity of the Torah and prophecy, sometimes even outspoken about this.

The same halacha is brought down in other places, for example in Shulchan Aruch Yoreh De’ah 158:

הַמִּינִים, וְהֵם שֶׁעוֹבְדִים לַעֲבוֹדַת כּוֹכָבִים, אוֹ הָעוֹשֶׂה עֲבֵרוֹת לְהַכְעִיס, אֲפִלּוּ אָכַל נְבֵלוֹת אוֹ לָבַשׁ שַׁעַטְנֵז לְהַכְעִיס הֲרֵי זֶה מִין; וְהָאֶפִּיקוֹרְסִים, וְהֵם שֶׁכּוֹפְרִים בַּתּוֹרָה וּבִנְבוּאָה מִיִּשְׂרָאֵל, מִצְוָה לְהָרְגָם. אִם יֵשׁ בְּיָדוֹ כֹּחַ לְהָרְגָם בְּסַיִף, בְּפַרְהֶסְיָא, הוֹרְגוֹ. וְאִם לָאו, יָבֹא בַּעֲלִילוֹת עַד שֶׁיְּסַבֵּב הֲרִיגָתוֹ. כֵּיצַד, רָאָה אֶחָד מֵהֶם שֶׁנָּפַל לִבְאֵר וְהַסֻלָּם בַּבְּאֵר, קוֹדֵם וּמְסַלְּקוֹ וְאוֹמֵר: הֲרֵינִי טָרוּד לְהוֹרִיד בְּנִי מִן הַגַּג וְאַחְזִירֶנּוּ לְךָ, וְכַיּוֹצֵא בִּדְבָרִים אֵלּוּ. הַגָּה: וְעַיֵּן בְּחוֹשֶׁן הַמִּשְׁפָּט סִימָן תכ''ה. מְשֻׁמָּדִים שֶׁמְּשַׁמְּדִים עַצְמָם וּמְטַמְּעִים עַצְמָם בֵּין הַגּוֹיִים לַעֲבֹד עֲבוֹדָה זָרָה כְּמוֹתָם, הֲרֵי הֵם כְּמוֹ מוּמָרִים לְהַכְעִיס וּמוֹרִידִין וְלֹא מַעֲלִין. (אוֹתָם) (תּוֹסָפוֹת פא''מ). וּמִכָּל מָקוֹם אִם בָּא לָשׁוּב, לֹא הֶחֱמִירוּ עָלָיו, שֶׁקָּשֶׁה לִפְרֹשׁ מֵהֶם וְחַיְשִׁינָן שֶׁלֹּא יַחֲזֹר לְסוּרוֹ. (ת''ה סִימָן קצ''ח).

The heretics, and those who practice idol worship (literally: worship of the stars), or who do sins for the sake of provocation, even one who ate forbidden foods or wore shatnez in order to provoke, this person is a heretic; and the apikorsim, and those who do not believe in the Torah and in the Jewish prophecy, it is a mitzvah to kill them. If one has strength in his hand to kill them with a sword, in public, he should kill him. Etc.

I could not find where the commentaries on those disagree either.

The law would appear clear on who it's referring to, and it also appears clear to be referring to individual action and not an act of a court.

And yet, I have never heard a rabbi practically advise a person to kill a heritic. So, how do we understand the halacha? The possibilities I can conceive of are:

a) Rambam's (et al) opinion is indeed that we should kill such heretics, but not in our day (such as because a court is involved in some regard; alternatively, because there is no country in which this halacha could be legally followed). (If this is the case, where is this brought down, and when/under what circumstances would it be applicable?)

b) Rambam's (et al) opinion is indeed that we should kill such heretics, but we do not follow his opinion. (If this is the case, where is it discussed why we do not follow his opinion?)

c) Rambam's (et al) opinion is that we should not kill such heretics, but rather there are other criterion (like where they actually pose a risk to life, though that would seem to be redundant as that's already covered by other laws). (If this is the case, where is it explained what he means and why he writes this halacha to appear as if he says this?)

What is the explanation for such a radical-sounding law, and if it is not a practical halacha, where is it explained for the proper understanding of how it's viewed?


*As an elaboration on who qualifies as an apikores, Hilchos Teshuva 3:7-8 says:

חֲמִשָּׁה הֵן הַנִּקְרָאִים מִינִים. הָאוֹמֵר שֶׁאֵין שָׁם אֱלוֹהַּ וְאֵין לָעוֹלָם מַנְהִיג. וְהָאוֹמֵר שֶׁיֵּשׁ שָׁם מַנְהִיג אֲבָל הֵן שְׁנַיִם אוֹ יוֹתֵר. וְהָאוֹמֵר שֶׁיֵּשׁ שָׁם רִבּוֹן אֶחָד אֲבָל שֶׁהוּא גּוּף וּבַעַל תְּמוּנָה. וְכֵן הָאוֹמֵר שֶׁאֵינוֹ לְבַדּוֹ הָרִאשׁוֹן וְצוּר לַכּל. וְכֵן הָעוֹבֵד כּוֹכָב אוֹ מַזָּל וְזוּלָתוֹ כְּדֵי לִהְיוֹת מֵלִיץ בֵּינוֹ וּבֵין רִבּוֹן הָעוֹלָמִים. כָּל אֶחָד מֵחֲמִשָּׁה אֵלּוּ הוּא מִין:

שְׁלֹשָׁה הֵן הַנִּקְרָאִים אֶפִּיקוֹרְסִין. הָאוֹמֵר שֶׁאֵין שָׁם נְבוּאָה כְּלָל וְאֵין שָׁם מַדָּע שֶׁמַּגִּיעַ מֵהַבּוֹרֵא לְלֵב בְּנֵי הָאָדָם. וְהַמַּכְחִישׁ נְבוּאָתוֹ שֶׁל משֶׁה רַבֵּנוּ. וְהָאוֹמֵר שֶׁאֵין הַבּוֹרֵא יוֹדֵעַ מַעֲשֵׂה בְּנֵי הָאָדָם. כָּל אֶחָד מִשְּׁלֹשָׁה אֵלּוּ הֵן אֶפִּיקוֹרוֹסִים. שְׁלֹשָׁה הֵן הַכּוֹפְרִים בַּתּוֹרָה. הָאוֹמֵר שֶׁאֵין הַתּוֹרָה מֵעִם ה' אֲפִלּוּ פָּסוּק אֶחָד אֲפִלּוּ תֵּבָה אַחַת אִם אָמַר משֶׁה אֲמָרוֹ מִפִּי עַצְמוֹ הֲרֵי זֶה כּוֹפֵר בַּתּוֹרָה. וְכֵן הַכּוֹפֵר בְּפֵרוּשָׁהּ וְהוּא תּוֹרָה שֶׁבְּעַל פֶּה וְהַמַּכְחִישׁ מַגִּידֶיהָ כְּגוֹן צָדוֹק וּבַיְתּוֹס. וְהָאוֹמֵר שֶׁהַבּוֹרֵא הֶחֱלִיף מִצְוָה זוֹ בְּמִצְוָה אַחֶרֶת וּכְבָר בָּטְלָה תּוֹרָה זוֹ אַף עַל פִּי שֶׁהִיא הָיְתָה מֵעִם ה' כְּגוֹן הָהַגְרִים. כָּל אֶחָד מִשְּׁלֹשָׁה אֵלּוּ כּוֹפֵר בַּתּוֹרָה:

Five individuals are described as Minim: a) one who says there is no God nor ruler of the world; b) one who accepts the concept of a ruler, but maintains that there are two or more; c) one who accepts that there is one Master [of the world], but maintains that He has a body or form; d) one who maintains that He was not the sole First Being and Creator of all existence; e) one who serves a star, constellation, or other entity so that it will serve as an intermediary between him and the eternal Lord. Each of these five individuals is a Min.

Three individuals are described as Epicursim: a) one who denies the existence of prophecy and maintains that there is no knowledge communicated from God to the hearts of men; b) one who disputes the prophecy of Moses, our teacher; c) one who maintains that the Creator is not aware of the deeds of men. Each of these three individuals is an Epicurus.

There are three individuals who are considered as one "who denies the Torah": a) one who says Torah, even one verse or one word, is not from God. If he says: "Moses made these statements independently," he is denying the Torah. b) one who denies the Torah's interpretation, the oral law, or disputes [the authority of] its spokesmen as did Tzadok and Beitus. c) one who says that though the Torah came from God, the Creator has replaced one mitzvah with another one and nullified the original Torah, like the Arabs [and the Christians]. Each of these three individuals is considered as one who denies the Torah.

The law would appear clear on who it's referring to, at least regarding apikorsim. Regarding minim, Rambam does speak about them sinning l'hachis in the halacha but not in the definition here. I've seen mumar l'hachis described as one who sins to anger God (as per this translation), one who sins out of spite, an intellectual (as opposed to emotional) sinner, and one who sins out of lack of faith or apathy. In any event, it is generally the alternative to one who sins out of a craving. Due to the potential confusion of who that refers to, the question in my mind can just as well be focused on apikorsim.

As another footnote, it also appears clear to be referring to individual action and not an act of a court, hence me seeking insight on what else this should be understood to mean.

Edit: I have been asked to clarify how this question is different from "History of Capital Punishment" on actions of a Beis Din. The difference is that this is a particular halacha which, at least on the surface, is not about actions of a Beis Din, but rather is written in a way that appears to describe actions of an individual.

  • If I’m understanding your question correctly, you’re asking about how this Halacha manifests itself today. If this is correct, then seemingly your question is a subset of History of Capital Punishment which discusses why we don’t practice capital punishment anymore. – DonielF Mar 27 at 2:09
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    @DonielF That question is about capital punishment by a Beis Din. My question is about this halacha which is about an individual killing an apikores if he has the capacity to do so (or to otherwise cause him to die). – Aaliyah Mar 27 at 2:23
  • Why are you assuming that Rambam is overturning the practical aspects of how such a determination of their legal status is made, meaning two witnesses, warning, testimony before a court, etc? This is more about execution of judgment after status determination. Unless you think this is pertaining to the act of a zealot, like Pinchas. But that also has specific limiting conditions. It isn’t a license for vigilante-ism. – Yaacov Deane Mar 27 at 3:44
  • @YaacovDeane How do you know this isn’t supposed to describe vigilante-ism? After all there do appear to be differences in the way this situation is described (“אִם יֵשׁ בְּיָדוֹ כֹּחַ לְהָרְגָן”, “רָאָה אֶחָד מֵהֶן שֶׁנָּפַל לִבְאֵר”), whereas with other capital offenses Maimonides generally mentions witnesses, a court, or at least a passive description of the punishment. It’s more analogous to the wording in the first chapter of Rotzeiach describing the actions of a blood redeemer or killing a rodef, compared to the cases of murder where it describes court action. – A L Mar 27 at 4:28
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    @YaacovDeane That is only regarding action by a court. There is enough difference here (again: How would stealing a ladder from someone in a cistern relate to a Sanhedrin trial in this case?) that I'm not convinced that this involves a court case. Similarly Avodat Kochavim 10:1 says, paraphrasing, "If you see an idolator drowning, you can't save them, but you can't push them in, unless they're a Jewish heretic who might sway other Jews." The implications are enough that I'd prefer if you could bring a commentary or equivalent that clarifies that this means to have involvement of a court. … – Aaliyah Apr 1 at 0:13
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It is not that a court is required; that is not the situation described here. Rather, based on Mamrim 3:2, it would appear that this is referring to a case where it became publicly known that an individual was a heretic, causing them to lose their status and, consequently, any need for a warning or judges.*

Instead, Chazon Ish on Yoreh Deah 2:16 gives an explanation why this law is not operative today, namely he says that it applies in a time when divine providence is evident and heretics would know that their actions lead to catastrophes. But in our day, this is not the case, and people would see the killing of heretics as destructive and not constructive, so it should not be practiced. Instead, nowadays he advises that people "attract the masses to Torah through love".

He also adds that there is a proper way to rebuke them which we don't know how to do and thus "one must treat them as transgressors under duress" and that heretics are victims of the "spirit of the times" and likewise they are not necessarily regarded as heretics and sinners.

Hence, the explanation provided for not implementing the above law is that who is regarded as a heretic requires important additional qualifiers beyond Rambam's (et al) presented definitions which would mean that there are no heretics and wanton sinners anymore, and additionally that the practical consequences of the law need to be taken into account.


*Rambam describes that aspect in a related halacha in Mamrim 3, where if a person denies the validity of the Oral Law consciously, according to his perception of things and after his frivolous thoughts, for example the followers of Zadok and Boethus (but not their children, who were simply raised to have the incorrect beliefs):

Since it has become known that such a person denies the Oral Law, he may be pushed into a pit and may not be helped out. He is like all the rest of the heretics who say that the Torah is not Divine in origin, those who inform on their fellow Jews, and the apostates. All of these are not considered as members of the Jewish people. There is no need for witnesses, a warning, or judges for them to be executed. Instead, whoever kills them performs a great mitzvah and removes an obstacle from people at large.

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It is possible that the command to kill innocent people were not really Maimonides intentions. As you know, Maimonides was a rationalist and accepted much of the philosophy of the Greek pagan Aristotle. He accepted Greek thought, so much so, that some scholars question whether Maimonides felt, as Ralbag and Ibn Ezra did, that G-d does not know humans as individuals, thus violating his own laws.

As you know, since Maimonides felt the need to help people (the general population) who wanted to know what Judaism required of them, he felt obligated to write the Mishneh Torah (the second Torah); to explain what was permitted and what was not (prohibited). Thus, he included, or listed and explained commands that the rabbi felt were explicit or implicit in the Torah. For example, in his code of Jewish laws, Mishneh Torah, he included the laws of sacrifices even though they were no longer applicable at his time and ours, for Maimonides felt that G-d did not need nor want sacrifices but only “allowed” them as a concession for the needs of the early times (ancient Israelites).

For support of this view we shall refer to the Talmud and one of the first law codes ever composed.

Interestingly enough, the Talmud only sanctioned one Targum (translation of the Bible) for Jews along with the Hebrew Bible on a weekly basis. This was the famed Aramaic Bible translation called Targum Onkelos, which the Talmud called Targum didan, “our translation,” or “the authorized Targum,” which was the only targum that was ever authorized by the rabbis (See Babylonian Talmud, Megillah 3a,) and yet despite thousands of volumes of composed Midrashim, the rabbis never required Jews to read Midrashim as they did Onkelos. It seems clear that the rabbis did not take Midrashim literally but as parables designed to teach proper behavior. Maimonides agreed with this.[1]

Interestingly enough, Professor Lawrence H. Schiffman compared the Code of Hammurabi, one of the oldest law code ever recorded, to the Bible and made an interesting assessment. Schiffman posits that the laws of ancient people were not seen as the old expression goes ‘set in stone,’ rather they acted more like guidelines, they were never practiced on a superficial level. So, rather than practicing these seemingly harsh laws, the rabbis tell us that these laws were actually meant to wean people away from harsh cruel judgments. Historians know this process as “synchronization.” For example, the law for “an eye for an eye” was never carried out in biblical times (the Talmud, or Oral Torah, explains it to mean that people pay money in monetary compensation). The same applied to the laws of slavery, polygamy, the laws of the captive woman, and destroying cities.

Understanding the ancient worldview of laws and the rabbis endorsement on the more rational Bible translation over imaginative Midrashim, and Rambam’s emphasis on codifying Jewish laws, helps us better understand Maimonides.

[1] Might we say Rambam viewed some laws as he did Midrash

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    So your conclusion is that he wrote these halachos but does not believe them to be true/correct. It seems very strange that he would write volumes of complex detailed laws but if he was being honest would tell you it’s none sense. – mroll Mar 30 at 3:46
  • @mroll As you know, Maimonides was a very religious man but felt the need to help people. Please see what I wrote here regarding Maimonides. – Turk Hill Mar 30 at 4:11
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    The op was an hallachic question. You cannot make a psak according to your meta hallachic knowledge, which are not accepted in the hallachic world. The problem with halacha is that you need proofs. A simple reasoning cannot be valuable. – kouty Apr 2 at 8:59

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