In this week’s parashah, Parashas Shemos, we make our first encounter with Dasan and Aviram—two wicked men destined to become a painful thorn in the sides of the future nation of Israel.
In the midst of an argument, the two men came to blows with one another, at which time Moshe Rabbeinu met them, asking the one (Shemos 2:13): “Why would you strike your neighbor?” Rashi explains: “Even though he didn’t yet hit anyone, one who raises his hand is called a rasha (wicked).”
In the present article we will address the prohibition of assaulting others. When it is forbidden to hit others, and when is it permitted to do so? What is the nature of the prohibition to raise one’s hand against another? What is the status of hitting somebody for an educational purpose?
We will seek to answer these questions by means of exploring the fundamentals of the prohibition against hitting others.
The Basic Prohibition
The Torah forbids an appointee of Beis Din from smiting somebody beyond the required number of lashes. For certain transgressions, the Torah delineates a punishment of forty lashes (this is interpreted by the Sages as meaning thirty-nine), adding that it is forbidden to add an extra blow: “Forty stripes may be given him, but not more, lest, if one should go on to beat him with more stripes than these, your brother be degraded in your sight” (Devarim 25:3).
The Gemara (Makkos 23a) cites a baraisa which derives from here a general prohibition on hitting others. This prohibition is ruled by the Rambam (Chovel 5:1): “It is forbidden for a person to cause injury, both to himself and to others. Furthermore, even somebody who hits a decent (kasher) individual among Israel, whether a minor or an adult, whether man or woman, by way of quarrel—he transgresses a negative commandment.”
Following the lead of the Rambam, the same halachah is ruled by the Tur and by the Shulchan Aruch (Choshen Mishpat 420:1). Because the aggressor transgresses a negative commandment, it follows that he is disqualified from edus (giving testimony; see Choshen Mishpat 34).
Stringency of the Prohibition
Elsewhere, the Rambam (Sanhedrin 16:12) writes that although smiting another involves a Torah prohibition, the guilty party will not be liable for punishment (by lashes).
The reason for this is that under most circumstances, striking another will obligate the hitter in payment of financial compensation to the victim. Because of the financial liability, no additional punishment is administered.
However, the exemption (in most circumstances) from punishment does not by any means detract from the severity of the prohibition. This severity is implied by the citation of the Gemara (Sanhedrin 58b) from Rabbi Chanina, whereby “somebody who slaps his fellow’s face is considered as though he slaps the face of the Shechinah.”
Indeed, the Gemara continues to mention a case in which Rav Huna cut off the hand of a person who was a repeat assault offender. However, this extreme measure reflects a special and unconventional punishment, which was administered because of particular need. In general, the Torah does not sanction such punishments.
Smiting the Wicked
The wording of the Rambam, as quoted above, makes specific mention of an adam kasher mi-yisrael, a ‘decent’ Jew among Israel. This wording implies that the prohibition against hitting others does not apply to hitting a wicked person.
The source for this halachah is a comparison between the prohibition against hitting others, and the prohibition against cursing others (Sanhedrin 85a). Just as the prohibition of cursing others applies only to somebody who “follows the custom of your nation,” so the prohibition against hitting others does not apply to somebody who does not follow Torah practice.
The Ran (Chiddushin, Sanhedrin 85a) writes that although there is no prohibition on smiting the wicked, the financial obligation to recompense for damages caused still applies. The Yerei’im (217), however, writes that there is no liability for damages caused in smiting somebody wicked.
The Kovetz Shiurim (Bava Kama 106) explains that where there is no prohibition on smiting, there is no corresponding liability for damages.
A Case of Wicked v. Wicked
The matter of hitting a wicked person raises a question concerning the brawl between Dasan and Aviram mentioned at the outset of this article. On the words “why would you strike your neighbor?” Rashi comments: “Your neighbor – a wicked person like yourself.”
If the victim of the assault was wicked, what was the claim of Moshe against the assaulter—surely there is no prohibition against smiting the wicked?
This question is raised by Shut Maharit (Vol. 2, Even Ha-Ezer no. 43), who explains that although it is permitted for an ordinary person to smite the wicked, it is forbidden for a wicked person to hit any man, even a wicked person as himself.
This principle is similar to the idea presented by the Chafetz Chayim (Shemiras Ha-Lashon Chap. 17, in the name of the Semak and others), whereby it is forbidden for somebody guilty of a particular offense to punish somebody else who transgressed the same offense.
Hitting for Educational Purposes
Although we have established the prohibition of hitting others, the Rambam states clearly that the prohibition applies only “by way of quarrel.” When a person smites another not out of hate, anger, or animosity, but out of a desire to educate and train, the prohibition does not apply.
This point is raised, based on the wording of the Rambam, by Shut Divrei Yatziv (Orach Chaim 169, sec. 6), who writes that “it is simple” that the Rambam means to exclude a mentor who scolds his disciple for the purpose of educating him. He proceeds to mention a number of Rishonim who make explicit mention of the principle.
Rav Moshe Feinstein (Iggros Moshe, Choshen Mishpat Vol. 1, no. 3) also notes the principle, writing that the prohibition does not apply to somebody who wishes to prevent somebody form violating a transgression, to a father who wishes to educate his child, and to similar cases, because hitting in these cases is not “by way of quarrel.”
Although there is no prohibition of smiting in these instances, one should nonetheless think (at least) twice before relying on the halachic permit to use physical force. Even when there is no prohibition, hitting remains a last resort, and it is often accompanied by negative traits. If the educational (or other) purpose can be achieved by other, more peaceful means, these should certainly be preferred.
Raising a Hand against Another
Based on our the Torah portion mentioned at the outset, Chazal (Sanhedrin 58b) derive that not only is it forbidden to hit others, but even somebody who raises his hand against his fellow is considered a rasha (wicked).
This principle is ruled by the Rambam: “Even raising one’s hand against another Jew is forbidden, and one who does so, even without actually hitting the other person, is considered a wicked person.”
There is room to investigate the nature of this prohibition: Does the prohibition refer only to somebody who raises his hand against his fellow with the actual intention of striking him? Or does the prohibition apply even when a hand is raised in anger against another without any intention of actually hitting him?
The Yad David (Sanhedrin, loc. cit.) implies that the former understanding is correct, and the same decision is cited by Re’acha Kamocha (Vol. 4, end of book) in the name of Rav Chayim Kanievsky. The wording of the Yere’im (217) whereby a person must not “raise his hand upon his fellow to hit him” also implies, to some degree, that the prohibition applies to somebody who actually wishes to strike his fellow (the same expression is used by the Tur, Choshen Mishpat 420).
However, the wording of the Rambam in his Sefer Ha-Mitzvos (Negative Commandment 300) is that “they have warned us even from hinting at smiting, even if he does not hit.” The implication is that the prohibition of raising one’s hand against another applies even without intention of actually hitting. This is also implied by the Chinuch (595), who writes that “the Sages prevented us even from hinting at smiting.”
The two different approaches can perhaps find sources from the Gemara and the Midrash. The wording of the Gemara, citing from Resh Lakish, is: “One who raises his hand against his fellow, even without striking him, is called wicked.” This can be understood as meaning that the simple action of raising one’s hand (in a threatening manner) is forbidden, no matter what the intentions.
The Midrash (Shemos, Tanhuma 8), however, states that one of the categories of people considered wicked is “one who extends his arm against his fellow in order to hit him, even if he doesn’t hit him.” The words “in order to hit him” imply, as noted above, an intention to actually smite the victim, suggesting that the prohibition does not apply when there is no intention to do so.
Summary:
- It is forbidden to smite others. Chazal see this prohibition as being extremely severe, though under most circumstances the assaulter will not be punished, because of his financial liability for damages caused.
- There is no prohibition against smiting a wicked person. However, some state that this ‘leniency’ does not apply to somebody who is himself wicked. We have not discussed, in this article, the definition of somebody ‘wicked’ for purposes of this halachah.
- There is no prohibition against smiting for educational purposes, such as a father hitting his son, a teacher hitting a disciple, or the administration of corporal punishment by Beis Din. It is likewise permitted to strike others in self-defense.
- It is forbidden to raise one’s hand against another. According to some opinions this prohibition only applies to somebody with the intention to actually smite his victim. However, this qualification is not clear, and one should refrain from raising one’s hand against others, even when there is no intention to actually hit.
