Defining A Kanai

  • Rav Moshe Taragin

     In a few weeks we will read about the stirring heroism of Pinchas in saving the Jewish people from a certain catastrophe.  By killing Zimri who had publicly ridiculed Moshe's authority and Torah law, Pinchas stemmed a growing crisis and sanctified Hashem's name.  This article will explore the legal aspects of vigilantism in seeking to establish its conceptual structure.

 

     The gemara in Sanhedrin (86a) introduces two very compelling rules 'limiting' the intervention of the kanai.  On the one hand, if he asks our license he is advised against (ein morin kein).  Though he might be acting upon valid and even heroic motives, we cannot officially counsel him to take the law into his own hands.  Furthermore, the gemara rules that if the criminal were to defend his life against the kanai by KILLING the latter, he would not be punished.  Even though Pinchas acts out of pure and religious motives, he is branded a RODEF who can be killed by the person he is chasing in self-defense.

 

     These two laws force the following question: under what auspices is the kanai acting?  We might have been inclined to view him as a court agent.  Bo'el aramit (sexual relations with gentiles), though prohibited, is not punishable by Beit Din (along with two additional crimes mentioned in the mishna Sanhedrin (81b)).  In the absence of the Beit Din's capacity to administer punishment, the kanai can act on their behalf and execute his own form of justice.  If this were true, we might be surprised that he isn't ADVISED to take this action and that the criminal can turn around and murder the court agent in self-defense.  The thought of a convicted criminal murdering the executioner in self-defense is ridiculous.  If Pinchas acts as a court agent we would have trouble understanding this halakha. 

 

Alternatively, instead of viewing him as a court agent, we might see Pinchas as allowed (or even commanded) to operate INDEPENDENTLY of Beit Din to prevent the growing chilul Hashem.  As he is not implementing official justice but acting alone, he is not officially counseled to intervene nor is he protected from his 'victim's' efforts to save his own life. 

 

     The question of the kanai's status in relation to Bet Din is addressed by the gemara as well as the Rishonim.  The Yerushalmi makes an astonishing claim: Pinchas acted against the will of the Sages and was about to be excommunicated for his actions, until the Ru'ach Ha-kodesh announced his reward for his heroism.  This account far surpasses the earlier cited comments of the Bavli that the kanai is not encouraged to intervene.  According to the Bavli he might not be advised, but he certainly performs a positive and necessary function; he is certainly not a candidate for excommunication!  The Yerushalmi obviously adopts a more negative opinion regarding the kanai.  Clearly this sentiment is not shared by the Bavli, which mentions neither the intention to excommunicate nor the dissatisfaction of the Chakhamim.

 

However, even within the Bavli's equation a very interesting question surfaces: Would Pinchas be classified as an AGENT of Beit Din acting on their behalf or would we designate him a vigilante - one whom we tolerate/celebrate but nonetheless someone who legally acts independent of the judicial system?  The Rishonim employ various different terms to define Pinchas and subsequent kana'im.  Rashi ((82a) s.v. parvankah) employs the term shliach (agent), and in his commentary to the mishna alludes to the fact that the kanai executes the law of Beit Din.  By contrast, the Rambam (Hilkhot Sanhedrin chapter 11) claims that the punishment of the bo'el aramit is not administered by Beit Din, suggesting an independent status for the kanai.  In his commentary to Sanhedrin, the Ran quite explicitly defines the kanai as an independent force, as evidenced by the ability of the bo'el aramit to turn upon his erstwhile kanai and kill him in self-defense.  According to the Ran, we could not possibly view Pinchas as a court agent if he can be eliminated in self-defense. 

 

     Defining the legal status of Pinchas would undoubtedly impact upon the scope of legal kana'ut.  If indeed we view him as an extension of the court or as its agent, we might restrict his latitude to settings in which the court would administer punishment.  For example, the Rambam and the Ra'avad dispute whether a kanai must warn the subject before executing him.  While the Rambam dispenses with the need for a warning, the Ra'avad requires one.  In all likelihood, the Ra'avad Hilchot Issurei Biah chapter 12 might be identifying the kanai as a court agent and thereby requires him to preserve some semblance of due process.  By contrast, the Rambam might view the kanai as independent (consistent with his language in hilkhot Sanhedrin - the "Beit Din does not administer to a bo'el aramit") and therefore ignores the standard protocol of beit din. 

 

     A similar issue arises as to whether a kanai can punish a minor who is involved in bo'el aramit.  Since a minor cannot be punished by a court, if we view a kanai as a court agent we might disallow his punishing a minor.  The Rambam in Issurei Biah (again in maintaining his consistent view of a kanai as an independent force) allows the kanai to intervene in the case of a minor.  The Minchat Chinukh, in his commentary to Parashat Bemidbar, questions this ruling of the Rambam. 

 

     A third factor which might be influenced would be the relevance of the kanai in our era, when a formal, halakhic beit din capable of administering punishments is not available.  Though the Rambam cites the laws of kana'im, the Shulchan Arukh (see Even Ha'ezer 16) omits these laws.  Some have suggested that as he was writing a legal tract he may have omitted laws no longer relevant to the society in which he lived.  The possibility of limiting the kanai to societies in which the beit din itself can execute penalties might again demonstrate the structural relationship between the kanai and standard due process. 

 

     In truth, our fundamental question - the status of the kanai and whether he acts independently or as an extension of beit din - is itself the product of a broader issue: for what 'violation' is this bo'el aramit being killed? Certainly he commits an aveira by engaging in sexual conduct with a Gentile.  Whether he violates a Biblical prohibition or only a Rabbinic one depends in large measure upon how we define the prohibition of 'lo titchaten bam' (intermarriage), - does it apply to all Gentiles, or just members of the seven nations residing in Israel at the time of conquest?  Furthermore, does it obtain if the relationship occurred outside the marital context? See Methodology shiur #12 in the 5757 Methodology Series, entitled Lo Titchaten - The Issur of Intermarriage which discusses this issue at length.  Even if he doesn't violate a Biblical prohibition, he certainly violates a Rabbinic decree (see Avoda Zara (36b)).  What, however, warrants the death 'sentence' which the kanai implements?

 

     The aforementioned gemara in Avoda Zara (36b) declares that the rule of kana'im applies only if the violation occurs in public.  Intuitively, this rule suggests that the bo'el is being punished less for the actual sin committed and more for the Chillul Hashem which that sin engendered.  Had the punishment been a product of the violation, it would apply in private as well.  Chillul Hashem, however, is a phenomenon that might apply only to sins committed before a public audience.  The notion that the kanai punishes to halt the Chillul Hashem is corroborated by Rav's statements in Sanhedrin (82a): Vayarei Pinchas (Pinchas saw) - what did Pinchas see? - he realized that anytime a Chillul Hashem is being committed no deference is shown to a Rebbi (and hence he interceded ahead of his Rebbi, Moshe).  According to Rav, the emerging Chillul Hashem provided impetus for Pinchas to precede Moshe and license to punish Zimri. 

 

     The Ramban, in his commentary known as Milchamot Hashem, to Sanhedrin 74b adopts a slightly different stance.  He seeks to prove that sexual engagement with a Gentile woman is halakhically defined as 'erva,' and thus demands 'yeihareig ve-al ya'avor' (sacrificing your life and not violating the prohibition).  One might have claimed that though relations with Gentiles are forbidden, they do not classify as erva and do not require a sacrifice of life.  The Ramban proves otherwise, specifically because a bo'el can be killed by the kanai.  If he hasn't violated erva, why should he be put to death?  Evidently, the Ramban reasons, relations with Gentiles classify as erva and demand yeihareig ve-al ya'avor.  Apparently the Ramban claimed that the bo'el is killed by the kanai because he committed a gross violation of erva, and not solely because of the Chillul Hashem (which would apply even if the prohibition doesn't qualify as erva).  It might be interesting to question the Ramban's position in light of the gemara in Avoda Zara.  If the bo'el commits erva, why shouldn't the kanai be licensed even for private violations?

 

     To summarize, we might question the basis for the death sentence which the kanai implements.  Is the bo'el is being killed because he committed erva, or does his Chillul Hashem warrant his death even in the absence of erva?  This general issue would clearly affect our earlier question.  If the kanai is punishing the bo'el for the act of erva, he can certainly be seen as a court agent extending their judgment beyond the literal four walls of the courthouse.  However, if the bo'el has not committed erva  and the kanai is intervening to cease a Chillul Hashem, we might find it more difficult to view him as a court agent.  The court's authority extends to prohibitions and the punishments they invite.  The court is not authorized to adopt extralegal measures to prevent Chillul Hashem.  Such action on the part of the kanai, though tolerated and even ordained (according to the Bavli), cannot be perceived as the actions of a court agent.

 

METHODOLOGICAL POINTS:

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1) By aligning a halakha with a related system we impose certain limitations of scope.  By viewing the kanai as an extension of Beit Din, he might be obligated by standard Beit Din protocol in punishing Zimri.

 

 

2) Often, the specific issue being addressed is itself a consequence of a broader factor.  The function of the kanai might be a product of a different issue: the precise basis for Zimri's death 'sentence.'