Fire and Fury: May Beit Din Punish on Shabbat?

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March 18 2012
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The Sefer Hachinuch writes that this pasuk teaches us that judges should not execute judgments (“shelo yaasu hadayanim dinim”) on Shabbat. The Chinuch goes on, paraphrasing the Sefer Hamitzvot (lav 322) to note that there is a conflict between different sources as to how this halachah is derived. The Mechilta derives the halachah from “lo teva’aru”. The Torah has already instructed us that melachah is not permitted on shabbat (Shemot 20:10). This leaves the specific prohibition of hav’arah extraneous. On this basis, the Mechilta concludes that this mention of hav’arah is not referring to Shabbat, but rather to sreifat beit din. The Torah is prohibiting the administration of the punishment of sreifah on Shabbat and uses a drasha (lelamed al haklal kulo yatza) to apply this to all mitot beit din.


The Chinuch, again borrowing from the Sefer Hamitzvot, points out that the phrase “lo teva’aru” is also used for another well known derashah (“hav’arah lechalek yatza”). Since this derashah is accepted l’halachah the words “lo teva’aru” cannot be the source of the prohibition to execute judgments because they are already employed. Instead the Sefer Hamitzvot and Chinuch refer to a Gemara Yerushalmi in Sanhedrin (4:6) which uses the word “moshvoteichem”, which refers to the sitting place of beit din, to learn the prohibition of executing judgements.


The Minchat Chinuch observes that the Sefer Hachinuch’s introductory sentence (“shelo yaasu hadyanim dinim”) implies that this prohibition includes any type of court punishment including lashes (malkot). However, the Chinuch only brings one example of applying this prohibition, in the case of mitah. Therefore, the question remains as to whether this prohibition applies universally to all forms of punishment or only to the four mitot beit din.


The Minchat Chinuch cites the Rambam (Shabbat 24:7) who rules that all forms of punishment are prohibited including lashes. This would settle the Minchat Chinuch’s question if not for the comment of the Magen Avraham who notes (O”C 339 note 3) that the Gemaras which mention this issue (Yevamot 6b, Sanhedrin 35b, Shabbat 106a) imply that the prohibition is only for punishments which involve violating shabbat. We had reason to believe that certain punishments, because their administration is a mitzvah, should have overridden the prohibition of shabbat even though these punishments involve doing certain melachot. “Lo teva’aru” teaches us that this is not the case. However punishments which do not involve violating Shabbat are certainly obligatory. The Magen Avraham is therefore uncertain about how to explain the Rambam since he includes malkot, which does not seem to involve any violation of shabbat. He suggests that perhaps the Rambam holds that malkot indeed involve a melachah (that of chovel) and this is why he included malkot in his ruling.


I would like to make the case (bemechilat k’vod haMagen Avraham) that the Rambam does hold as we originally thought, that the prohibition of “moshvoteichem” applies to all kinds of punishment. This is evident from a number of places. Firstly the Rambam in Sefer Hamitzvot is explicit in stating that the prohibition is “to carry out punishments upon wrong-doers, and to actualize verdicts (piskei din) on Shabbat” (lav 322). This formulation sounds like it applies to all punishments. Furthermore one may ask if the purpose of “lo teva’aru” is only to prohibit carrying out the mitzvah of onesh beit din in certain cases, why should this alone constitute a separate mitzvat lo ta’aseh? This should be considered merely a limitation of the mitzvat aseh. Therefore it seems that this prohibition applies even to those punishments which do not involve melachah. This notion is further supported by the Rambam in hilchot Shabbat. The Rambam begins perek 24 of hilchot Shabbat by stating activities which are prohibited on Shabbat even though they are not melachot and do not bring one to do melachot. Rather, they are prohibited because Shabbat requires that we change our general conduct from that of weekdays. If the Rambam holds that “moshvoteichem” only prohibits punishments which involve a direct melachah, this halachah does not belong in perek 24.


However the Magen Avraham’s observation of the Gemaras still holds. These Gemaras seem to imply that we are only concerned with punishments which are at odds with keeping shabbat. If so, how does the Rambam learn that this rule extends to all punishments? The answer may lie in the aforementioned Gemara Yerushalmi. As noted above, the Rambam asks on the Mechilta which learns our prohibition form the words “lo teva’aru”. He answers his question using the Yerushalmi which learns from the word “moshvoteichem”. However, we find that the Bavli in no less than two places (Sanhedrin 35b, Yevamot 6b) asks the exact same question as the Rambam and gives the same answer. If so why did the Rambam reach for the Yerushalmi, which is the more obscure source? The answer, perhaps, is that while the Bavli uses this derashah only in terms of violating Shabbat, the Yershalmi’s formulation is more universal. The Yerushalmi simply asks, “from where do we know that courts cannot judge on Shabbat”, and answers “from moshvoteichem”. From the context of the Gemara it seems that “judging” here refers to punishing. We find, therefore, that the Yerushalmi concludes that the derashah of “moshvoteichem” expands from sreifat beit din to include all court punishments, even those which do not involve melachah. If this is so, the Rambam’s choice of the Yerushalmi as the source for this halachah indicates that he chose the Yerushalmi’s understanding of the derashah as opposed to that of the Bavli, and therefore the question of the Magen Avraham does not apply to the Rambam’s ruling.


Thus we may conclude that according to the Rambam, the prohibition of administering onshei beit din on Shabbat
applies universally to every onesh.

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