One of the first events that the Torah details in the book of Shemos is the fight that broke out between two Israelite men, and Moshe’s coming between them: “It was on the second day, and behold – two Israelite men were fighting. And he said to the wicked one: “Why do you smite your fellow?”
The Gemara (Sanhedrin 58b) derives from this verse that it is forbidden for a person to raise his hand against his fellow: “Reish Lakish said: One who raises his hand against his fellow, even if he does not smite him, is considered wicked (rasha), as it says: He said to the wicked one, ‘Why will you smite your fellow?’ It does not say, ‘Why did you smite,’ but rather ‘Why will you smite’ – even though he did not smite, he is considered wicked.”
Not only is it forbidden to smite another – it is even forbidden to raise one’s hand without actually smiting him. This halachah is ruled by the Rambam (Chovel U-Mazik 5:2), and is likewise noted by the Shulchan Aruch (Choshen Mishpat 420). The Rema also mentions the halachah in relation to laws of testimony (34:4): “One who raises his hand against his fellow is rabbinically disqualified from giving testimony.”
In the present article we will define the parameters of this prohibition, and outline its details. How is the prohibition defined, and when does it apply? How is the person’s intention relevant to the prohibition? Is somebody who raises his hand against another automatically disqualified from giving testimony? Can he serve as a witness at a wedding?
Smiting a Wicked Victim
The above-mentioned case of the two men Moshe found fighting raises an interesting question in the laws of raising one’s hand against others. As noted, the Gemara derives the prohibition from the wording of the verse, which calls the aggressor a rasha even though he only raised his hand.
The Maharit (Even Ha-Ezer 43) raises the following question: We know that both of the quarreling men were wicked people (Chazal identify them as Dasan and Aviran). Given this, the prohibition of raising one’s hand against others should surely not apply, for we know that even concerning actually striking others, the prohibition does not apply to wicked people (Sanhedrin 85a; this halachah is derived from the prohibition of cursing others, which mentions that the other must be part of ‘your nation’).
If there is no prohibition against actually striking a wicked person, surely there should not be any prohibition against merely raising a hand against him?
This question has likewise been raised by Rabbi Chaim Ha-Levi (of Brisk; cited in the ‘Stensil’ to Makkos), who suggested, based on the Midrash, that the intention of the aggressor was to kill his disputant and on account of this intention he was called wicked. This answer, however, raises a new difficulty of how the prohibition of raising one’s hand against others can be derived from the case. If the intention was to kill, how can we derive a general prohibition against raising one’s hand against others even when there is no such intention?
The Maharit himself suggests that although the prohibition does not generally apply to wicked people, this exception does not apply to an aggressor who is himself wicked. This answer seems to be somewhat strained: If wicked people are excluded from the prohibition since they are not considered part you “your nation” (which is includes only those who perform the deeds of your nation), why should it matter if the aggressor is likewise wicked?
The Question of Intent: Saving Another from Assault
The principle suggested by the Maharit is already found in earlier sources. The Chafetz Chayim (Shemiras Ha-Lashon Chap. 17, in the name of the Semak and others) notes that it is forbidden for somebody guilty of a particular offense to punish somebody else who transgressed the same offense. The reason given is that his actions are not for a constructive purpose – in order to castigate the wicked or educate others – since he is guilty of the same offense.
The matter can be understood based on the ruling of the Sema (421:28) that although it is generally permitted to save a victim of assault from his aggressor even if this requires smiting the aggressor, this permit is contingent on proper intentions on the part of the rescuer. If his intentions are not pure, and he rather desires to strike the aggressor out of hate and spite, it is forbidden for him to do so. In the same vein, it is forbidden for a wicked person to smite a similarly wicked person, because of the negative intention involved.
However, the Taz (loc. cit.) disputes the ruling of the Sema, and argues that a person’s intentions are of no relevance to the issue of smiting another. If the result will be saving the aggressor from sin and the victim from harm, it is permitted (and obligatory) to intervene regardless of the rescuer’s intentions.
Thus, according to the Taz there is a need to explain why there should be a distinction between the case of a regular person raising his hand against someone wicked, and the case of a wicked person doing the same thing.
Defining the Prohibition of Raising One’s Hand
There are two distinct ways in which we can interpret the prohibition of raising one’s hand against another.
One way is to define the prohibition as the beginning of striking him: Hitting somebody has two stages – raising one’s hand, and then striking the other. The Torah prohibits not only the second action, but even the first, which is forbidden even if the second stage is not carried out.
Another possibility, however, is that the prohibition is not related to actually striking somebody else, but rather applies to raising one’s hand even if only as a threat. According to this approach, in addition to the prohibition against actual hitting, it is also forbidden to raise one’s hand in threat.
The wording of the Gemara in Sanhedrin (58b) is “one who raises his hand against his fellow, even though he did not strike him, is considered a rasha.” The simple implication is that there is no need for any intent to actually strike the other. Rather, even the simple act of raising one’s hand against anyone is forbidden.
This understanding is also implied by the ruling of the Rambam (Chovel U-Mazik 5:2). The Rambam further writes in his Book of Mitzvos (Negative Commandment 300), “It is forbidden to hint at hitting, even if one does not strike.” The clear implication is that the prohibition is unrelated to any actual act of smiting another, or even intention thereof.
However, the Midrash (Shemos Rabba 1:29) states: “From the time that a person raises his hand to smite his fellow, even if he did not complete the action, he is considered a rasha.” This statement implies that the prohibition applies only where raising one’s hand is coupled with an intention to actually smite. The Midrash Tanchuma (Korach 8) is also indicative of this, and the wording of the Rema, which refers to “one who raises his hand against another to strike him,” also implies that raising the hand must be part of an intention to smite.
Even the source of the halachah, which is Moshe’s words “why will you smite,” implies that the prohibition is related to the act of striking, and not to merely raising one’s hand without connection to an actual act of hitting another.
Possible Practical Ramification
One clear application of the question above is to the matter of intent. If the prohibition of raising one’s hand against another is part of the act of striking, the prohibition will only apply where there is intent on the part of the aggressor to actually hit a victim. If the intent is merely to threaten, the prohibition will not apply.
Beyond this distinction, it is possible that if the prohibition is defined as an independent act of raising one’s hand, it will not apply if the other party is unaware of it. The prohibition of striking another clearly applies irrespective of the victim’s awareness – but a prohibition of raising one’s hand can be understood as a threat. If the victim is unaware of the act, it can hardly be construed as a threat, and it is therefore possible that the prohibition will not apply. This ramification, however, remains arguable.
Another possible ramification is the question raised by the Maharit. If the prohibition of raising one’s hand against another is part of the act of striking, it is clear that it will not apply to a wicked victim: The prohibition of striking does not apply to a wicked person, and the same is of course true with regard to the first part of the action.
However, if the prohibition is unrelated to the act of striking, it can be suggested that although the prohibition of striking does not apply to a wicked victim (as derived from the prohibition of cursing), the independent prohibition of raising one’s hand may still apply even to somebody wicked (the halachah of a wicked victim will not be learned out from the prohibition of cursing).
However, this approach appears strained. Even if the prohibition is not defined as part of the act of striking, it is clear from the rulings of the Rambam and other authorities that the prohibition is closely related to the prohibition of hitting somebody, and this is also clear from its Torah source. This being the case, it certainly stands to reason that if the prohibition of actually hitting others does not apply to a rasha, the same will be true of raising one’s hand.
Raising a Hand against a Rasha
Another possible approach to the question raised by the Maharit can be based on the opinion expressed by the Meiri, who writes that the exception from the prohibition (against actual striking) with respect to a rasha applies only to the punishment for striking, and not to the prohibition itself. According to the Meiri, there is a prohibition against striking somebody wicked, even though the act is not punishable.
It appears that the Shulchan Aruch concurs with this approach, for the Shulchan Aruch rules (420:1) that it is forbidden to strike one’s fellow, and makes no mention of the exception concerning a rasha (as the Rambam does, Chovel U-Mazik 5:1). This omission is explained well by the principle of the Meiri, for if the exclusion of a rasha from the prohibition applies only to punishment (and not to the prohibition per se), it follows that today, when we no longer apply any corporal punishment, the exclusion of a rasha is of no practical import.
Based on this approach, it is clear that the prohibition of raising one’s hand against another applies even to somebody wicked, and even though both parties are resha’im, the prohibition can be derived from the fighting men whom Moshe reprimanded.
Disqualification for Testimony
The main practical ramification of the prohibition of raising one’s hand against another – beyond the normative prohibition itself – is with regard to disqualification from giving testimony. We have already noted the ruling of the Rema (34:4): “One who raises his hand against his fellow is rabbinically disqualified from giving testimony.”
Shut Mishpetei Shmuel (55) discusses a fight that broke out between two people, in which one of them was unable to restrain himself and raised his hand against the other party, but without actually striking him. Should he be disqualified for testimony? The Mishpetei Shmuel explains that being unable to restrain oneself in the face of provocation is considered something of an excuse in verbal insults, but is not a factor in the matter of raising one’s hand.
However, because the disqualification is only rabbinic (as the Rema rules – though some authorities suggest that the disqualification should apply on a Torah basis), it follows that it does not take effect until the matter is publicly declared in beis din (Sanhedrin 26b) or in shul (see Rambam, Edus 11:6).
Therefore, somebody who raised a hand against another is not required to refrain from serving as a witness at a wedding (for instance), because the lack or a formal declaration implies that he remains a qualified witness.
In conclusion, it is interesting to note that most non-Jewish legal systems include the concept of “raising one’s hand against another” as part of their criminal codes. In the American system, raising one’s hand against someone in a threatening manner is forbidden as a kind of assault. If the person then follows through with physically striking the individual, it becomes a battery. Modern law, too, recognizes that “one who raises his hand against his fellow is considered a rasha.”
