Moral Jew II: Mistake

Essay One: Moral Jew II: Mistake
It is obvious that G-d himself has the right to kill someone or order someone’s death. Nonetheless, a mere mortal should not be given such an entitlement. Even if a person is fulfilling the command of HaShem, a person is never perfect and perhaps he is doing something wrong (i.e. it was the wrong person, or the person did not do something that warrants losing his life). Even a proper Beis Din can sometimes make mistakes as is evidenced by the existence of an entire Levitical passage[1] in the Torah about the par heleim davar (“The bull for the matter that was hidden from the congregation” i.e. Bais Din promulgated an inaccurate psak). There is even an entire Mishnaic/Talmudic Tractate devoted to such laws, namely, “Horayos” (court rulings). How can we trust even a proper Bais Din to carry out executions if there is a chance that they will make a mistake? How can we ever trust Bet Din?

The Psalmist writes[2], “HaShem stands in the G-dly congregation, in the midst of judges, He judges.” One clearly sees from here that G-d judges alongside other judges, namely the Earthly Bais Din. When a proper Beis Din makes a mistake, it was the will of G-d for that mistake to have occurred (just as everything else in the world is also His will). The resulting sacrifices in the situations discussed in Horayos and in the fourth chapter of Vayiqra (Leviticus) only apply when the Sanhedrin makes a mistake, and later acknowledges its previous mistake. Such an error is not actually an error for the only mistake one can ever make is not acknowledging one’s own mistakes, and here they admitted their blunder.

There are three states of mind, in which a person can potentially be while performing an action. A person can do an action purposefully and willingly (meizid). If this action is a transgression of the law or is a sin, then he is liable for punishment. Depending on the sin, Beis Din can subject him to a flogging, monetary penalty, execution (by fire, strangulation, sword, or stoning) or any sort of Heavenly punishment (being cut off from the World To Come, early death, prolonged life with suffering, or dying childless, should we not know of such punishments). If a person transgresses by mistake, it is called shogeg and he is usually exempt from most punishments, and must merely repent. However, in certain instances, repentance is not sufficient, and therefore the sinner is Biblically required to offer a sacrifice in the Holy Temple (a qorban chatas or asham, a sin or guilt offering). Only when the offense is done forcibly or by accident (ones) is one totally “off the hook.” When a married woman is raped against her will, even though she is technically committing adultery, the Merciful One writes[3], “And to the girl you shall not do anything” because she was forced; and from here, the Gemara[4] deduces the rule that the Torah always exempts an ones. An ones is any victim of unavoidable circumstances and thus is considered blameless. One who follows an erroneous court ruling and thereby commits a sin is given the status of a shogeg[5].

After Bais Din sentences someone to death and that verdict is carried out, even if he is subsequently found to be conclusively innocent, the verdict cannot be overturned. Obviously, the execution cannot be reverted (unless G-d, who revives the dead, does so), but even the final judgment still stands and the condemned is still condemned. This is because a halachik decision – even if erroneous— is always the will of G-d (ratzon HaShem), assuming the Bais Din was honest. Just as one who follows an erroneous resolution concerning issur v’heter (forbidden and permitted) issues has the status of an inadvertent sinner (shogeg), the one who carries out an undeserving execution by the order of Bais Din is also an inadvertent sinner. How can it be the “will of G-d” that someone should be inadvertently killed? This idea can be compared to that of the Talmud[6], which explains how people are subject to punishment in present times despite a lack of Bais Din and the authority to execute. It says HaShem punishes those who "get away" with meditated “mezid” murder (without being given the death penalty) and mistaken “shoggeg” murder (without being forced into exile) by putting them together and causing the latter to mistakenly kill the former and thus the former gets his deserved death sentence carried out, while the latter will now be exiled[7]. Perhaps one way that G-d triggers the murderer to be mistakenly killed is by causing Bais Din to erroneously pasken that he should die.

The Sages[8] maintain the position that one who sinned because of reliance on a fallacious leniency from Bes Din is no different from any other person who inadvertently committed an offense for which a chatas is required. They therefore obligate such an individual to bring a qorban chatas. However, once a majority of the Jewish inhabitants of Eretz Yisroel (Israel) relies on the mistake of Bays Din, the individuals are patur (exempt) from being a personal chatas, for a communal one is brought. Reb Chaim Brisker (Rabbi Chaim Soloveitchik (1853-1918) of Brest-Litovsk) says[9] another possible reason can be that since the majority also sinned, it causes each individual’s sin to be in the category of the communal sin for which one is not obligated to bring a personal offering. The practical difference between these two reasons is whether if a majority of the congregation sinned, but for some reason they are not obligated to bring a communal chatas, one is obligated to bring a personal chatas or not.

The Noda B’Yehuda (Rabbi Yechezkel Landau (1713-1793) of Prague) asks[10], according to the Sages, how can an individual be obligated to bring an offering for merely following the rulings of the court? Why is one who relies on a fallacious leniency disseminated by Beis Din considered a shogeg--and thus obligated to bring a personal chatas--as opposed to an ones? The Noda BiYehuda answers that a shogeg is any case in which a mistake is made, no matter who it was that made the mistake. When Bais Din makes an imprecise ruling, an error is made, and the follower of said error is responsible. He surely cannot be responsible for his own action, for he acted in way which he believed to be permitted, however his deed was the result of an error because the court was mistaken in its ruling. On the other hand, an ones (accident) occurs when there was no error whatsoever on anyone’s part, but rather everything was completely beyond the transgressor’s control.

One might think to himself that if he were responsible even when following the psak of Beis Din, then he would be better off ignoring the judicial injunctions of the Jewish Court. About this, the Torah writes[11], “Through the teaching [i.e. Torah] that they [the Sanhedrin and its lower courts] will teach you, and according to the justice that they will say to you, so you shall do; do not turn [deviate] from the words that they will tell right or left.” One is obligated to heed to the ruling of Bais Din “even if they tell you that right is left and left is right”[12]. Leeway is given in a situation when one knows that the Court’s directive is surely mistaken. However, even in such a case, he is only not obligated (or allowed) to follow their leniency until he presents to them his opinion and they reject it. After doing so, he is obligated to listen to the words of Bais Din.[13]

Why is the adherent to the Bais Din’s flawed decision not considered a mayzid, if he willfully committed a transgression (albeit while relying on a judicial ruling)? The Talmud teaches that even one who knew that Bais Din was wrong and still followed their lenient psak is called a shogeg; why is such a person not considered a willful transgressor? Where is there a “mistake” that he should be branded a mistaken sinner as opposed to a willful sinner? Rashi answers that such a person erred concerning the proper understanding of Deuteronomy 17:11. He thought that verse’s injunction to abide to Bais Din applied even with respect to performing an act that he knows to be forbidden (and relying on a ruling that he knows to be inaccurate). However, the correct law is that one is not bound to yield to the judges’ decision if he is convinced they are mistaken, until after he elaborates his opinion in front of the court and they reject it. Since he erred about this law and still followed the words of Bais Din, he is regarded as a mistaken sinner, not a purposeful sinner.

A final verdict of Bais Din can only be overturned by Bais Din. This means that even if one proves Bais Din conclusively wrong, the verdict still stands until the Bais Din itself admits its mistake and retracts the said ruling. Even another Bais Din cannot necessarily null and void another Bais Din’s decrees or rulings, unless the second Bais Din is, as the famous Mishnaic dictum dictates, “greater than the first in wisdom and numbers.” Just as the Tractate Avos (“Ethics of our Fathers”) is replete with warning to judges (i.e. to be careful in their deliberations) that can equally apply to the average citizen, this law that only a Bais Din can reverse a Bais Din’s psak is a lesson for everyone. Only the one who makes an error can fix his error, and the first step to fixing an error is admitting that an error was made. Even though as humans, we are prone to making mistakes, we must try to emulate our perfect Creator as much as possible. Therefore, when we are pure-hearted, we should have the right to carry out rulings using the World’s blueprints (i.e. the Torah). It is a pity that in this day and age people are more crooked than in previous times, but with G-d’s help we will merit to once again have righteous judges with the coming of the Messiah and the re-building of HaShem’s Holy Temple and the re-establishment of the Sanhedrin, speedily and in our days. Amen.


[1] Leviticus 4:13-21
[2] Psalms 82:1
[3] Deuteronomy 22:26
[4] Bava Kama 28b
[5] Whether or not he is obligated to bring a personal chatas is subject to a Tannaic dispute: Rabbi Yehuda believes he is always exempt from bringing a chatas, while the Sages maintain he is not exempt until the majority of the nation also sins because of the court’s mistaken leniency and thereby necessitating a public offering of par heleim davar. The opening Mishna of Meseches Horayos (2a) expresses the opinion of Rabbi Yehuda. See more about the Sages’ opinion below.
[6] Kesubos 30a-b
[7] Makkos 7a ff
[8] Horayos 2b
[9] Chiddushei Rabbeinu Chaim HaLevi to Maimonides, Laws of Mistakes 13:4
[10] Responsa Yoreh Deah §96
[11] Deuteronomy 17:11
[12] Sifri ad loc.
[13] See Ramban/Nachmanides in his hasagos (points of arguments) to the Sefer HaMitzvos of the Maimonides, Shoresh (root) 1. The Ramban answers a seeming contradiction between the Sifri and the Talmud in Horayos 2b.