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Physical Violence in Halacha

 

While physical violence is forbidden in every civilized society, every culture has its own interpretations of violence. The Torah provides us with clear guidelines, unbiased by culture and social norms. What follows is a halachic overview of the matter: How does the Torah judge a person who lifted his hand to hit, but didn’t end up hitting? When is the label ‘wicked’ introduced? Why is hitting condemned so severely? What about threatening? What kind of physical violence is prohibited? Is where the smack lands of any significance, and why?

In teaching children right from wrong, should parents prefer smacking a child, or resort to using speach instead? What is the nature of the early cherem [ban] instituted against one who hits another Jew, and is it applicable nowadays? Domestic abuse will also be discussed here, as well as the hitter’s halachic status – can he serve as a witness under a chuppah or a chazzan in shul?

Sources

In this  week’s parasha we read about young Moshe Rabbenu who “grew up and went out to his brothers and looked at their burdens” (Shemos 2:11). There he saw, “two Hebrew men were quarreling, and he said to the wicked one, ‘Why are you going to strike your friend?’” (Shemos 2:13). The Gemara (Sanhedrin 58b) derives from the future tense used in this pasuk that Moshe was referring to the man’s future intent. He had not yet hit his fellow – nevertheless by merely lifting his hand he had already earned the title rasha – wicked.

Prohibition

The above mentioned Gemara teaches us that lifting one’s hand to hit, even if it never materialized earns one the dubious title of ‘wicked’. According to Rav Huna, his hand should be chopped off. According to Rabbi Elazar only death and burial in the ground can cleanse one of this sin. The Gemara recounts a case in which Rav Huna actually acted upon his ruling and cut off the hand of a violent man. Rashi explains that while this should not be the accepted manner of dealing with violent people, in this case there was no better option. Nevertheless, this teaches us that a Beis Din has the power to carry out even drastic punishment, when necessary.

The Zohar (Bereshis 58a) differentiates between ra – bad, and rasha – wicked. Rasha is the title one earns even for just lifting his hand to hit, but ra describes someone who acted wrongly like Er and Onan.

Prohibition’s Essence

The Rambam (Sefer Hamitzvos, negative commandment 300) and Sefer Ha’chinuch (Mitzva 595) include in the prohibition any form of inflicting emotional pain, including one who just threatens another with physical violence or even scares another, no matter which method was utilized. This includes all forms of threatening, blackmailing, and bullying.

The Maharal (G’vuros Hashem, chapter 19) explains that a rasha is one who distorts the world’s natural order, altering how the world should be. Every person has the right to be safe – nobody has the right to inflict pain on another. When one indicates that he is about to hit another person, he is distorting the world’s natural order. The opposite of the rasha is a tzadik – one whose actions are in tune with the world’s natural order, tzedek, which can be translated as righteousness, decency, and  justice. That explains why people who gouge prices are also called reshaim because they interfere with the market’s natural forces.

Rabbi Yitzchok Zilberstein (Chishukei Chemed, Sanhedrin 59b) explains that the reason one earns the title ‘wicked’ without actually doing anything, (i.e. just physically getting ready to strike), is because lifting up a hand already causes hatred. And hatred causes many other severe prohibitions such as slander, rechilus, and even bloodshed.

Only actively threatening another is included in this prohibition. However, thoughts and plans, if they are unapparent, are not included. This is derived from the pasuk: “The wicked shall give up his way, and the man of iniquity his thoughts” (Yeshayahu 55:7). The ‘wicked’ is one who acted upon his plans, while the ‘man of iniquity’ is still in the planning stage. Although he has not done anything wrong yet and is not ‘wicked’, even planning to do evil earns one the title ‘man of iniquity’.

Negative Prohibition

The Gemara (Kesuvos 33a) teaches that one who hits a Jew transgresses the negative Torah prohibition: “He shall flog him with forty [lashes]; he shall not exceed, lest he give him a much more severe flogging than these [forty lashes], and your brother will be degraded before your eyes” (Devarim 25:3). The Torah is stating that a sinner who is punishable by lashes must not be flogged even once more than the amount Beis Din prescribed. The Gemara reasons that if the Torah views giving a sinful person one additional flogging as such a severe transgression, by fortiori — one who hits an innocent person would certainly transgress this prohibition. This halacha appears in the Shulchan Aruch (CM 420:1).

Smacking Style

The Rambam (Sefer Ha’mitzvos, negative commandment 300) states that the Torah’s prohibition refers to life endangering blows. The reason is because when Beis Din punishes a sinner with flogging, a doctor first determines how many lashes he is able to bear without endangering his life. Therefore, if Beis Din’s executioner adds one additional blow the sinner might lose his life. Thus the blows that the Torah explicitly refers to are blows that can kill. This definition can also be deduced from the Midrash (Shemos Raba 1:29) that tells us that Datan and Aviram had been planning to kill each other.

Despite the above, all poskim agree that even a non-life-threatening smack transgresses a Torah prohibition. This may depend upon the source of this prohibition: the Sma (420:1) maintains that the Rambam and Rashi deduced this prohibition from the words: “he shall not exceed”, while the Tur and Shulchan Aruch deduced this prohibition from the words: “lest he give him a much more severe flogging.”

The Sma asks why the Tur and Shulchan Aruch chose to learn this prohibition from the end of the pasuk and not from the beginning where it is more explicit. He answers that the first part of the pasuk refers specifically to Beis Din’s executioner who must exercise extreme caution to flog the criminal the exact amount of prescribed lashes, because even one additional blow could cause his death. The general prohibition to hit someone with a non-life-threatening blow can only be deduced from the second half of the pasuk.

In light of this explanation, there is no disagreement between the Rambam and others. When the Rambam writes that the Torah is referring to life endangering blows he is describing the beginning of the pasuk where the Torah refers to Beis Din’s executioner. The Tur and Shulchan Aruch’s ruling, forbidding every kind of smack, is deduced from the second half of that pasuk.

Face Slapping

Smacking another Jew across the face is a separate prohibition. The Gemara tells us (Sanhedrin 58b) that smacking another Jew across the cheek is likened to smacking the Shechinah’s face. The Toras Chaim (Bave Kama 90a) writes that any other sort of physical damaging, although prohibited, is not considered like smacking the Shechinah, the Divine presence. This is because smacking a person across his face is intended first and foremost to shame him, while smacking on other parts of the body is intended to inflict physical pain. While pain hurts the body, shame injures the soul. Since a Jewish soul is part of the holy Shechinah, smacking a Jew on his face is an insult to the spark of Divinity that rests in every Jewish soul.

This is very important for parents and educators: while it is sometimes necessary to smack a child for educational purposes, one should not hit him on the face. Even when it is absolutely necessary to hit a child, one must on another part of the body, not on the face.

In light of the current understanding of the damage educators can cause by unwarranted or unbridled hitting, some parents and educators have resorted to tongue-lashing. Here, we must bear in mind that while sticks and stones may break bones – sharp words can break the heart. And crushing a Jewish child’s soul is certainly worse than any physical pain, as we stated earlier – emotional pain is much worse than physical pain.

Ban

The Maharam from Rothenberg (Prague edition, chapter 1:22) lists Rabbenu Gershom’s and the other early bans. While the more famous ones are not opening another’s mail and marrying two wives, hitting is also on that list. One who smacks another Jew is automatically excommunicated and cannot be counted towards a minyan until the community releases him from the ban. He is only released upon repentance and agreement to follow all of Beis Din’s demands. This includes paying a fine.

Upon meeting all the criteria, one is released from the ban even if the victim does not forgive him and demands that the ban remain in place. This ruling appears in the Rama (CM 420:1).

The Sma (footnote 4) differentiates between this ban and the others on the list. While releasing a man from the ban against polygamy requires permission of 100 rabbis from three countries, releasing a person who smacked another from his ban requires only three people, because the ban is not as severe as the one forbidding marrying a second wife. (Sefer Chassidim [chapter 49], though, sees it as being more severe: “And think … to see it as if he married two wives which transgresses Rabbenu Gershom’s ban, for which everyone calls him insolent… and all the more so one who hits his fellow and also if he lifts his arm against him, even if he is not yet 13 years old…”.)

Current Application

The Chasam Sofer (Volume V, CM 182) was presented a question regarding a violent person who hit a talmid chacham for no reason. The talmid chacham suffered bleeding as a result, but could do nothing to his assailant since he was a well-connected figure in the community. He could not be banned either, due to the violent man’s social status. Every time he had a yahrzeit he would daven for the amud. Since he should have halachically been placed in a ban and not be counted towards a minyan, could people answer to his kaddish and kedusha?

The Chasam Sofer answers that while he should have been banned, the purpose of the ban is to cause him to repent when he sees himself excommunicated from public Jewish life. His prayers, though, are still considered prayers, and one must answer amen after his brachos. Therefore, where he is not excommunicated by the entire community, the ban has no effect, and there is no reason for those few who’d like to see him banned to lose out on Kaddish and Kedusha.

In this case, the Chasam Sofer concludes, Hashem Himself will do justice with the victim.

Today, whereas the community does not have the power to excommunicate an assailant, there is no reason to forbid him from joining a minyan.

Fine

The Maharam from Rothenberg (Prague edition, 1:22) notes that Rabbenu Tam and his court set the fine for hitting someone outside shul at 25 Tournois (a currency used in Medieval France), and double that for hitting someone in shul. Rabbenu Yosef Kara attests that this was the accepted fine in Paris under Rabbenu Yechiel, and was multiplied by the number of blows.

The Maharam from Rothenberg quotes Rabbi Yosef Chazan of Troish as saying that this sum was not a set amount. Rather, every Beis Din would set the penalty according to its understanding of the damage that was caused in the case on hand.

This fine is in no way a payment for damages which the victim can file for, but a public fine. As such, we could have thought that the money should go towards the local charity, but the Maharam writes that the French Sages instituted it should be paid to the victim.

He adds that if the victim hit back, neither should be excommunicated, but both should be fined according to the number of blows, regardless of who initiated the fight.

Domestic Violence

The Rama writes (EH 154:3) that a husband who beats his wife transgresses a negative prohibition just like any person who hits a fellow Jew. Nevertheless, halacha sees hitting one’s wife more severely because it was acceptable non-Jewish behavior. While the communal punishment for hitting someone is being excommunicated, for domestic violence the Rama instructs Beis Din to utilize any form of physical and financial discomfort it can to put the shameful behavior to an end. Beis Din even forces a violent husband to swear he’ll never hit again. He is warned that should he continue, he will be forced to divorce his wife.

He Started First

One who lifts his hand to hit, or even actually hits, is not always called wicked. The Shulchan Aruch (CM 421:13) and other poskim (ibid) provide detailed information when hitting is an acceptable reaction, and when one may not hit back.

A Witness

Rabbi Yitzchok Zilberstein (Chishukei Chemed, Sanhedrin 58b) describes the following case: Reuven was honored to serve as a witness at a wedding. Upon seeing him being honored, Shimon, one of the guests, yelled at him, “How can you serve as a witness, you are a thief! You borrowed money from me, and didn’t return it!” Reuven, who was shamed in public, raised his hand to hit Shimon. The wedding guests had to separate the two.

After investigation, it turned out that Shimon had invented the story, and the family wished to proceed with the wedding. The parents were, nevertheless, concerned that perhaps Reuven could no  longer serve as the witness because he raised his hand and was now considered a rasha, a wicked person, which disqualified him from serving as a witness.

Rabbi Zilberstein answered that he does not become disqualified, basing his ruling on various poskim (Yam Shel Shlomo, Bave Kama 3:26; Shevus Yaakov volume I, chapter 179; Pischei Teshuva CM 421:3). This is based on the halacha that if one knowingly accused another of something he didn’t do and the accused hit him back in anger, although he transgressed a negative Torah prohibition and requires atonement, he is not labeled ‘wicked’. This is based on the pasuk: “There is one who speaks like the jabs of a sword” (Mishlei 12:18) – there is nothing worse than losing one’s good reputation. Therefore, since he was publicly shamed by Shimon and only raised his hand but didn’t actually hit [because he was stopped by other wedding guests], he is not called a rasha and not disqualified from serving as a witness.

 

 

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