4

I am wondering how the laws of pikuach nefesh might apply to a situation of mitath beth din. Would bystanders be obliged to save the condemned from his lawful execution? What about members of the beth din itself?

(I'm guessing the answer to that last part is "no," or else the batei din would never have executed anyone. But why? I̶f̶ ̶t̶w̶o̶ ̶B̶i̶b̶l̶i̶c̶a̶l̶ ̶c̶o̶m̶m̶a̶n̶d̶m̶e̶n̶t̶s̶ ̶a̶r̶e̶ ̶i̶n̶ ̶c̶o̶n̶f̶l̶i̶c̶t̶,̶ ̶s̶h̶o̶u̶l̶d̶n̶'̶t̶ ̶t̶h̶e̶ ̶n̶e̶g̶a̶t̶i̶v̶e̶ ̶c̶o̶m̶m̶a̶n̶d̶m̶e̶n̶t̶ ̶t̶a̶k̶e̶ ̶p̶r̶e̶c̶e̶d̶e̶n̶c̶e̶?̶ ̶S̶h̶o̶u̶l̶d̶n̶'̶t̶ ̶l̶o̶ ̶t̶a̶'̶a̶m̶o̶d̶ ̶a̶l̶ ̶d̶a̶m̶ ̶r̶e̶i̶'̶e̶c̶h̶a̶,̶ ̶"̶d̶o̶n̶'̶t̶ ̶l̶e̶t̶ ̶s̶o̶m̶e̶o̶n̶e̶ ̶d̶i̶e̶,̶"̶ ̶t̶a̶k̶e̶ ̶p̶r̶e̶c̶e̶d̶e̶n̶c̶e̶ ̶o̶v̶e̶r̶ ̶t̶h̶e̶ ̶c̶o̶m̶m̶a̶n̶d̶m̶e̶n̶t̶ ̶t̶o̶ ̶p̶u̶n̶i̶s̶h̶?̶)

To what extent would the answer depend on whether the Beth Din's punishment is for an "exceptional sin" which one must die rather than transgress (yehareg ve'al ya'avor)? (Note that according to Maimonides, not all the sins punishable by execution were yehareg ve'al ya'avor.)

|improve this question
  • P.S., I get that the beth din doesn't execute people anymore, but the question and title became very clunky when written in the Past Unreal Conditional. – SAH Apr 1 '13 at 23:27
  • See Shulhan Arukh Choshen Mishpat 2:1, the Beit Din most certainly may execute someone if they see fit. – Rabbi Michael Tzadok Apr 2 '13 at 1:19
  • In what world do we say Pikuah Nefesh (positive) is pushed off for Shabbath (negative, Shamor)? – Seth J Apr 3 '13 at 2:42
  • Very similar: judaism.stackexchange.com/q/10483 – msh210♦ Apr 3 '13 at 6:21
  • @msh210 I thought so too at first. However that other question deals with someone himself escaping. Here we are talking about others trying to avert his death sentence. – Rabbi Michael Tzadok Apr 3 '13 at 10:23
3

The answer is no.

1)

Not only is it not a mitzva, rather it could be considered a felony. As stated in Devarim 17:7 :

יד העדים תהיה-בו בראשונה, להמיתו, ויד כל-העם, באחרונה; וביערת הרע, מקרבך

translated by Machon Mamre:

The hand of the witnesses shall be first upon him to put him to death, and afterward the hand of all the people. So thou shalt put away the evil from the midst of thee.

2)

In Sanhedrin 73:a, Chazal learn from ולא תעמוד על דם רעך that one must help and mustn't stand by when one sees someone else is drowning or attacked by a wild animal or the such:

מניין לרואה את חבירו שהוא טובע בנהר או חיה גוררתו או לסטין באין עליו שהוא חייב להצילו ת"ל לא תעמוד על דם רעך

And we can deduce that only חבירו, a freind, a regular person, or only when the death is not by the lawful eviction of Beit Din - that person should be saved.

3) ADDED IN EDIT

Even if velo ta'amod etc. is relevant (which I claim to the contrary), it's only one negative commandment that conflicts with 2 other commandments, one is positive - to punish - and the other is to do what the Chachamim say (Devarim 17:10-11: וְשָׁמַרְתָּ לַעֲשׂוֹת כְּכֹל אֲשֶׁר יוֹרוּךָ. עַל פִּי הַתּוֹרָה אֲשֶׁר יוֹרוּךָ וְעַל הַמִּשְׁפָּט אֲשֶׁר יֹאמְרוּ לְךָ תַּעֲשֶׂה לֹא תָסוּר מִן הַדָּבָר אֲשֶׁר יַגִּידוּ לְךָ יָמִין וּשְׂמֹאל) - which could be either a negative commandment, a positive, or both altogether (it doesn't matter for this claim).

Genrally, the gemara in Menahot 40:a says:

דאמר ריש לקיש כל מקום שאתה מוצא עשה ולא תעשה אם אתה יכול לקיים את שניהם מוטב ואם לאו יבוא עשה וידחה את לא תעשה

as said Resh Lakish everywhere you find Aseh and Lo Ta'aseh, if you can do both, great, otherwise, comes the Aseh and rejects the Lo Ta'aseh

so velo ta'amod etc. should be overruled.

Specifically, the pshat of ולא תעמוד על דם רעך (Vayikra 19:16) relates your freind. A death-senteced man isn't considered a typical freind. I coudn't find explicit sources for this commentary on this exact verse, but I did find that רעך isn't just anyone.

In Vayikra 19:13, לא-תעשוק את-רעך (Thou shalt not oppress thy neighbour), Chazal explain in Bava-Metzia 111:b that רעך is either used to exclude Ger Toshav or to exclude a man from the people of Amaleq.

In Shmot 2:13, Moses says to the Israeli that's about to hit another Israeli: וַיֹּאמֶר, לָרָשָׁע, לָמָּה תַכֶּה, רֵעֶךָ (Machon Mamre trans.: and he said to him that did the wrong: 'Wherefore smitest thou thy fellow?'), and Rashi explains:

רעך - רשע כמותך.

which is, in other words, "his your freind in his behavior", you guys behave the same. So when the term רעך is used in non-negative context, it's assumed to withold well-begaving person.

my free translation:

thy fellow - bad like yourself.

|improve this answer
  • That's all rather interesting but where do you show that either it not a mitzvah or that it is a felony to save someone from being put death? – Rabbi Michael Tzadok Apr 2 '13 at 2:09
  • @RabbiMichaelTzadok isn't Devarim 17:7 enough? – yair Apr 3 '13 at 1:41
  • And the second proof is from the Braita in Sanhedrin. – yair Apr 3 '13 at 1:56
  • If you think I should bring an explicit source for this being not-a-mitzva or a felony - I think that the stark thought, the hava amina, that one should "save" an evicted person's life from a lawful death sentence, is so illogical that there isn't necessariliy such a source. – yair Apr 3 '13 at 1:59
  • As far as Devarim 17:7, no that is not enough. That is a mitzvah directly aimed at the witnesses, not other people. I my opinion you fall far short of proving your point. – Rabbi Michael Tzadok Apr 3 '13 at 6:02
2

It wasn't the Beis Din who locked up the Mekoshesh, it was the people who saw.

Another point is that the rule is when two laws conflict, it is actually the positive command that prevails. עשה דוחה לא תעשה. But more importantly, this is not a conflict. A conflict is when two laws happen to clash. This is a case where a specific rule exists inside the general. A conflict is like having a red and green light shine simultaneously; this case is like the stop sign overriding the natural right-of-way.

|improve this answer
1

There are many different interpretations of Deuteronomy 25:11-12, and once you get used to Rashi's reading it's hard to reread it. However, Rambam (and Rabbi Kaplan's translation) follows Sifrei's reading:

Mister Cohen and Mister Levi are arm-wrestling, no one is in mortal danger; then Mrs. Cohen freaks out and is attempting to mortally wound Mister Levi. The Torah says Mrs. Cohen is a "pursuer", and do whatever you can to stop her, e.g. chop off her hand.

The Sifrei however says this applies only if Mrs. Cohen is :

אשת איש -- ולא אשת שליח בית דין

"Just some random guy's wife" -- as opposed to the wife of a court agent.

Meaning (I think): if Mr. Cohen is a court-appointed executioner trying to execute Mr. Levi, and Mr. Levi is fighting back, then we don't blame Mrs. Cohen for trying to save her husband.

I think it follows from there that no one is supposed to be protecting the life of someone that the Beth Din has condemned to death.

|improve this answer

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .