Latest update: April 25th, 2013
The Yerushalmi, in Sanhedrin 4:6, derives from the pasuk in the beginning of this week’s parshah, “lo seva’aru eish b’chol moshvoseichem b’yom HaShabbos – and you shall not ignite a fire in any of your dwellings on Shabbos,” that Beis Din is prohibited from judging on Shabbos. The Rambam, in Hilchos Shabbos 24:7, rules that Beis Din may not carry out the punishment of either death or lashes on Shabbos. He cites the same pasuk of “lo seva’aru” as the source for this halacha. In his Sefer Hamitzvos the Rambam lists as a separate negative commandment (number 322) that Beis Din may not judge or carry out a punishment on Shabbos.
The simple understanding of this halacha is that even though it is a mitzvah to kill someone who is chayav misah (deserving death) on Shabbos, it is forbidden. Despite being a mitzvah it may not be performed on Shabbos, when killing is prohibited, since the Torah says that the Shabbos should not be desecrated for this purpose. However, the Minchas Chinuch asks why the Rambam lists this as a separate mitzvah, when in fact it is the regular prohibition of not killing on Shabbos. This implies that the prohibition to judge and carry out punishments is a new prohibition, separate from the prohibition to kill on Shabbos.
The Magen Avraham, in Orach Chaim 339:3, discusses this matter and proves that there is a new prohibition to judge and exact punishment on Shabbos. He cites the above mentioned Rambam in Hilchos Shabbos and points out that the Rambam includes in the prohibition that Beis Din may not administer lashes on Shabbos. The Magen Avraham says that there is no prohibition of giving someone lashes on Shabbos, but rather that this is forbidden because there is a new prohibition not to judge and punish on Shabbos. He concludes that this is not a clear proof since often, when Beis Din administers lashes bloody wounds are created – which is forbidden on Shabbos.
The Rashba, in Teshuvos 1:357, holds that Beis din may appoint a non-Jew to carry out their verdicts. This is because the one who carries out the punishment does not have to be a real shaliach of Beis Din; rather it merely must be done on their behalf. Reb Elchanon Wasserman, zt”l, Hy”d, in Kovetz Haurus 76:18, explains that Beis Din does not have to carry out the actual punishment; instead they must arrange for it to be executed, and therefore they may appoint someone who is not generally suitable for shalichus. Alternatively the Rashba can be explained, based on the ruling of the Nesivos Hamishpat (Choshen Mishpat 182:1) that says that a non-Jew is fit for shalichus when all that is required is an action. A non-Jew is only unfit for shalichus of a transaction. Therefore Beis Din may appoint a non-Jew to execute their punishments.
Several Achronim ask the following question concerning the ruling of the Rashba: The Gemara, in Yevamos 6b, implies that there is never a situation whereby Beis Din may execute the death penalty on Shabbos. Since Beis Din may appoint a non-Jew to carry out their punishments, why then can they not punish on Shabbos by appointing a non-Jew to kill? However, if we say that there is a separate prohibition to judge and punish on Shabbos, aside from the actual killing, then Beis Din would be prohibited to do so – even if they were to appoint a non-Jew to carry out their verdict.
The Mishnah in Sanhedrin 73a says that if one is chasing after another in an attempt to kill him, everyone must prevent the attempted murder by any means – even by taking the life of the attempted murderer. The Mishnah says that this halacha also applies when one is chasing after one of the arayos. If one is chasing another man on Shabbos, there is no doubt that the halacha applies and that he may be killed since it is a matter of pikuach nefesh. However the Mishneh L’melech says that he is unsure whether the halacha applies to one who is chasing after one of the arayos, since it is not a matter of pikuach nefesh. The reason that he says that perhaps one would not be allowed to kill someone who is chasing one of the arayos is because it is a punishment that cannot be administered on Shabbos.
For questions or comments, e-mail RabbiRFuchs@gmail.com.Rabbi Raphael Fuchs
About the Author: For questions or comments, e-mail RabbiRFuchs@gmail.com.
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