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The Death Penalty, Lethal Force, and the Preservation of Society, Part 3

November 29, 2014

We now come to the talmudic concept of hathra’a, warning. One of the conditions for the court inflicting corporal punishment is that the witnesses properly warn the intended offender by telling him that his action could be considered a sin, and they need to delineate that sin, and “we do not punish unless we first warn.” Note that in the Jewish system, like in common law, ignorance of the law does not allow for exemption. All adult members of society are assumed to know that murder is wrong and punishable. It is also true that according to the Torah, secular and gentile systems of law may punish even if the witnesses did not warn the perpetrator. Now, let us compare two cases. In the first, the witnesses see one man murder another, but they had not warned him not to. They had not had the chance. In the second case, they have time to blurt out that his act would be considered murder, but he till goes through with it. Now, why should their penalties be any different? After all, both men have committed murder with obvious intent, and both have been witnessed by two adults!

The answer I believe, is that in the first case, the perpetrator can claim that he acted on the spur of the moment, or that he was not in his right mind, or something along those lines. or that he was overcome by his yetzer. The second perpetrator however, decided to sin even after he was specifically told not to. Most of us, if we have not become habitual sinners, can be dissuaded from doing something wrong. If however, we actually do something after being reminded by another that it is wrong, then we have actively demonstrated that we want to sin.

I have met two types of people acting under the influence of the “spirit of foolishness” that the sages described as entering an individual before he sins. Both were caught almost in the act, and rebuked. The first acknowledged that what he sought to do was wrong, and then justified his actions by declaring that the sin in question was actually one that he performed regularly, it was “his” sin, and that he knows he’s not a perfect person, but that is how he is, and he can not be told what to do. Our sages said that the mitzwa of reproof, tochaha, only applies if the reprover knows that the reproved will heed. There is no sense in trying to reprove  a man who will not listen; he will not only not take heed, he will also add to his iniquity. I have met such men, and seen how the decision to do wrong coupled with a warning not to proceed only made them try to do worse, like by victimizing others in attempts to cover up their initial actions. Such men, if representatives of the Torah, thereby commit an even greater sin when they are made aware of their guilt: they disgrace God’s name, and they have no share in the World to Come. They never seem to feel the discomfort and disgust that besiege the spiritually healthy man who is tempted.

The second man i met did seem that way. He acted as though he was crying out, and he was easily dissuaded when another heard of his desires. Such a man, though not to be commended for occupying his thoughts with evil, was ultimately saved from actually sinning.

This then is key: he who has been warned thereby verifies his own guilt, and is thus on a level altogether different from the one who was not warned, from the one who was not given the chance to reflect on his intended crime.

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