The Role of Hatra’a (Warning)
The first mishna in Sanhedrin cites a machloket between R. Meir and the Chakhamim regarding whether litigation of a motzi shem ra case, in which a man accuses his wife of adultery, requires 23 judges or merely three. The ensuing gemara (8a) offers several reasons for the dispute, ultimately presenting two opinions that suggest that R. Meir and the Chakhamim were really debating issues relating to hatra’a, the warning issued to one about to commit an aveira. The situation that R. Meir and the Chakhamim were discussing concerned a scenario in which an imperfect warning was delivered. If that warning is deemed halakhically legitimate, the proceedings could lead to capital punishment (if the woman were found guilty), and 23 judges should therefore be necessary. If, on the other hand, the imperfect warning is not valid, no capital punishment can be administered, and three judges would thus suffice. In this shiur, we will explore these two suggestions to the machloket and how they impact our broader understanding of the halakha of hatra’a.
R. Pappa claims that the alleged adulterous woman in this case was the wife of a learned person (eishet chaver), who thus presumably understands the halakhot relating to adultery. Since she was not properly warned, R. Meir claims that she cannot receive mitat beit din and only three judges are necessary. The Chakhamim respond that an educated person CAN be punished even without proper warning, as the entire purpose of a warning is to inform the perpetrator that he is about to commit a crime and thereby to assure that the act is not shogeg (unintentional). Educated people are aware of their actions, their illegality, and their consequences even without a hatra’a. Since "lo niten hatra’a ela le-havchin bein shogeg le-meizid," hatra’a only serves to distinguish between intentional and unintentional actions, no hatra’a is necessary for an educated woman. She can thus be put to death even in its absence, and 23 judges are thus required.
It seems that R. Meir disagreed with the Chakhamim's explanation of the "practical" function of hatra’a. Hatra’a plays an additional role BEYOND determining intent, and it is thus universally required, even for an educated person.
Indications that hatra’a plays more than a pragmatic function emerge from the very fact that the gemara (40b) hunts for pesukim to serve as the source for the need for hatra’a. If hatra’a is purely pragmatic, as we require a method of determining intent, why do we need a source at all? Its requirement should be self-evident and self-mandated! In fact, Tosafot (40b) assume that a pasuk is necessary only to mandate hatra’a in a non-obvious situation – an educated "chaver" (according to R. Meir, who requires it in THAT case (according to R. Pappa's analysis), or even according to the Chakhamim, if their machloket with R. Meir involves different unrelated issues). Tosafot sensed that:
1) Basic hatra’a should not require a pasuk
2) The mandate to “warn” a chaver is a NOVEL concept, requiring a PASUK and potentially demanding a rethinking of hatra’a's role.
A potential additional function for hatra’a may be derived from an interesting comment of a beraita in Sanhedrin (40b), which demands that a perpetrator “license himself” for the death penalty before he is administered capital punishment. This "self-licensing” is framed within the description of hatra’a; namely, one of the basic prerequisites of hatra’a is that the violator license himself for death. Perhaps, the role of hatra’a is to intensify the severity of the crime. Not all capital offenses warrant capital punishment, or even corporal punishment; only aggravated offenses are punishable. An act performed in DIRECT DEFIANCE OF A WARNING is a more SEVERE CRIME, and therefore punishable. The warning is not merely INFORMATIVE - informing the perpetrator of its illegality and helping us to determine his intent. Rather, the warning creates an atmosphere that exaggerates the nature of the crime.
If this is true, it would be reasonable to extend hatra’a to ALL scenarios, even if the violator is educated. Without hatra’a, the offense is deemed “minor,” or at least not “major” enough or defiant enough to be punished for. Similarly, this would explain the gemara's need to locate a source for hatra’a, as it is viewed not only as practical, but procedural and legal as well.
A comment of the Rambam strengthens the sense that hatra’a possesses an additional function. The same beraita that describes the parameters of hatra’a requires the violator to "accept" the hatra’a. Presumably, his “acceptance” is necessary to indicate his understanding of the terms. If he does not outright acknowledge or accept the hatra’a perhaps he didn’t hear or fully understand it. Yet the Rambam – based on this clause – demands that the violator respond to the warning by declaring "on the condition that I will be punished, I am persisting in my act." Why must his declaration be so strident if the warning is only intended to be informative and his response indicative of understanding? It seems that hatra’a plays this second function as well – to create an aggravated and defiant crime. Only by directly rebuffing the hatra’a and flouting the efforts to halt his crime has the person rendered his act an aggravated offense.
Having established a possible second function for hatra’a we can return to the original gemara in Sanhedrin (8a). The second scenario suggested by the gemara to explain the machloket between R. Meir and the Chakhamim about hatra’a may also yield the conclusion that hatra’a (at least according to some) possesses more than a functional role. Abbaye claims that the Tannaim were discussing a case in which a proper warning WAS issued, but the specific type of death penalty that would be administered was not specified. The Chakhamim maintain that this general warning is sufficient to yield a capital punishment (thus requiring 23 judges), R. Meir disagrees, claiming that a warning must stipulate the EXACT form of death penalty. This odd demand also reflects a more formal role for hatra’a. If the warning were merely meant to inform the violator and inform us of his intent, it would be strange to require such specificity. Wouldn’t the specter of death be sufficient to establish serious intent? What difference should it make if he were informed of one penalty or another? If, however, the function of hatra’a is to create a defiant and aggravated assault, procedure may require that he be “sentenced” by the “warners;” only by defying that SPECIFIC death sentence warning, he can be punished.
The question regarding the level of specificity required in hatra’a is addressed by Rishonim in other contexts. For example, in two locations Tosafot require the warning to specify the precise issur being violated and even, according to some readings, the pasuk upon which the violation is based. By contrast, other opinions claim that as long as the warning stated the illegal nature of the act, no specific aveira or pasuk must be mentioned (strikingly, some attribute this opinion to the Rambam). Again, the positions that require a formal warning (by demanding attribution of the specific issur) may indicate that the warning is intended to create a context in which the crime is an aggravated offense. One who not only hears a warning but is told of the particular issur and its related pasuk and still commits a crime can be punished for his defiant offense.
Perhaps the most extreme position that reflects a formal element to the warning is staked by one view in Tosafot in Bava Kama (2a). They claim that according to R. Eliezer, warning a Shabbat desecrator requires informing him of the av melakha that he is committing, and not the tolada. Only 39 forbidden actions are top-level "avot," while most activities are derivative toladot. According to the opinion in Tosafot the warning should not mention the particular act, but the parent category to which the act belongs or is subsumed under. In effect, R. Eliezer has thus made the warning LESS informative. The violator is squeezing juice from a fruit on Shabbat, yet he must be warned that he violating the av melakha of "dosh," thrashing wheat kernels! This would certainly demonstrate that the warning is meant to create a defiant act. Only by defying a parent-level warning is the act deemed severe enough to be legally punishable.