Parashat Vayakhel: Punishment on Shabbat
In reference to Shabbat, besides the general prohibition “you shall not do any work (melakha)” (Ex. 20:10), the Torah also writes specifically, “You shall not kindle a fire in any of your dwellings on the Shabbat day” (Ex. 35:3). The Talmud (Sanhedrin 35b) records a debate regarding the implication of this reiteration.
Some rabbis thought that the prohibition of lighting a fire was singled out in order to teach that violating this melakha incurs only lashes, whereas all other intentional violations of melakha carry either the death penalty or karet (spiritual excision). The Gemara refers to this position by the term “havara lelav yatzat” – burning was singled out to teach that it is merely a negative prohibition, as opposed to a capital offense.
Others thought that a single melakha was spelled out in order to teach that each melakha is an independent prohibition. The legal implication of this is that if one were to violate several melakhot unintentionally in one lapse of knowledge (i.e., without remembering in between violations that these acts were forbidden), he would be obligated to bring a korban ḥattat for each melakha he had violated. (However, in a case of an intentional violation there is no relevance to this principle, as one cannot be put to death twice.) The Gemara refers to this position as “havara leḥallek yatzat” – burning was singled out to teach that each melakha is a separate entity.
In addition to the above derivations, the Gemara propounds that the phrase “in any of your dwellings” indicates that the courts may not carry out capital punishment on Shabbat. The exact nature of this rule, though, is unclear. One possibility is that the Gemara was simply negating a possible assumption one might have made. One might have thought that the mitzva to “expunge the evil from your midst” (Deut. 13:6, inter alia; a general directive to rid society of criminals) overrides Shabbat, just as some other mitzvot do. For example, the Temple service is permitted on Shabbat despite the various acts of melakha that are involved. Therefore, it was necessary to teach that the mitzva to execute criminals does not take precedence over Shabbat.
According to this view, the verse does not introduce a new prohibition: it simply indicates that the original prohibition remains in effect. This is similar to the rule that building the Temple does not override Shabbat, derived from the verse “Guard My sabbaths and fear My Temple” (Lev. 19:30). There, the verse does not introduce a new prohibition: it just clarifies that the normal prohibitions of Shabbat remain in effect even in light of the mitzva to build the Temple.
However, the Yerushalmi (Sanhedrin 4:6) derives from this verse that courts may not adjudicate cases on Shabbat, implying that this is a more expansive prohibition, independent of whether melakha is performed. Yet many commentators assume that the general prohibition to judge on Shabbat is not biblical, but rather a rabbinic injunction meant to prevent people from writing.
Maimonides in Sefer HaMitzvot (Lo Taaseh 322) enumerates an independent prohibition. He says that it is forbidden to punish sinners on Shabbat. He explains that the derivation from the verse about fire teaches that it is forbidden to administer the capital punishment of sereifa, burning, on Shabbat. From there we extrapolate that it also is prohibited to carry out any of the other capital punishments.
In Hilkhot Shabbat (24:7), Maimonides expands this prohibition to include lashes, as well. The Magen Avraham (Oraḥ Ḥayim 339:3) asks why administering lashes should be forbidden: unlike capital punishment, this does not necessitate violating Shabbat. He suggests that perhaps lashes are forbidden because they might cause a wound, which is a melakha. Some suggest that inflicting a wound while administering lashes is inevitable (though not specifically intended), and thus forbidden as a pesik reisha – the rule that prohibits doing any action that will inevitably cause melakha to be violated. (The supercommentaries on the Magen Avraham offer other suggestions as to why administering lashes would or would not entail melakha.) In any case, the Magen Avraham clearly thought that there was no separate prohibition, but rather the derivation simply taught that the mitzva to punish criminals did not override Shabbat.
The Minḥat Ḥinnukh agrees with the Magen Avraham and asks why Maimonides counted this as a separate mitzva. If only punishments that include melakha are forbidden, there should be no reason to count a separate prohibition. However, Maimonides seems to have felt otherwise, assuming that the prohibition to administer punishment on Shabbat was independent of whether melakha was violated. As we have noted, this position can be seen in the Yerushalmi, as well.
While the above Aḥaronim rejected this position of Maimonides, others accepted it. The Avnei Nezer (Responsa, Oraḥ Ḥayim 46, par. 5) rules in accordance with Maimonides and expands on his position, claiming that it is biblically forbidden to excommunicate someone on Shabbat, as excommunication is a form of punishment. He also notes that Maimonides’ position emerges clearly from the Yerushalmi. However, in response to the question he was asked, he offers a fascinating limitation of this prohibition. He had been asked whether a scholar could excommunicate someone who had disgraced him. The Avnei Nezer claims that such a person is defined as a heretic, and is thus legally defined as lower than a non-Jew. The prohibition to punish on Shabbat seems to only apply to Jews. Thus, in such a case it would be permitted to excommunicate the person in question.
In addition to excommunication, there are other in-between cases where one must inquire whether they are included in Maimonides’ prohibition to administer punishment on Shabbat. For example, in many cases we are allowed to use force and administer lashes to someone who is refusing to perform a mitzva he is obligated to perform. We are even allowed to hit him “until his soul departs” (Ketubbot 86a). The Peri Megadim (in his introduction to Hilkhot Shabbat) is unsure of whether this is considered a punishment, and therefore whether it would be permitted on Shabbat. (Obviously, if one believes that there is only a prohibition to carry out punishments that include melakha, the relevant issue will be whether these blows will cause a wound, not their possible status as punishment.) The Shibbolei HaLeket cites a responsum from Rabbi Sherira Gaon that forbids incarcerating a criminal on Shabbat, even in a holding cell, as this violates the prohibition above. (From context, this is clearly limited to cases where the criminal poses no danger to the public.)
The Sefer HaḤinnukh explains the reason for this prohibition:
God wanted to give honor to the day, so that all people will find rest on it, even sinners and convicted criminals. It is like a king who invites all his subjects to a feast one day and does not prevent anyone from coming in. [Only] after the holiday will he exact justice. The same is true of God, who commanded us to sanctify and honor the day so it will be good for us and benefit us.