A Shaliach Beit Din Who Accidentally Murders

  • Rav Moshe Taragin

The second perek of Makkot describes those negligent murders who are exiled to an ir miklat (City of Refuge). The mishna (8a) lists several exceptions to this rule - individuals who, though they murdered negligently, are not sent into exile.  Abba Shaul adds a category of 'exceptions'- those who murder while legally assaulting someone else.  For example, if a father is hitting his son to encourage him to learn Torah and he negligently kills the boy, he is not sent into exile.  Similarly, if a shaliach beit din (court official) hits someone within the legal proceedings (later to be elaborated) and through negligence kills him, he is not required to flee to galut.


            The mishna derives this principle from the manner in which the Torah describes the scenario of a negligent murderer.  In parashat Shoftim (Devarim 19) the Torah depicts a situation whereby a lumberman enters a forest and begins to chop wood without knowing that passersby might be injured.  This negligent murderer must be exiled.  By selecting the scenario of a lumberman and a forest, the Torah effectively delimits the case of galut to cases of reshut - where the action which precipitated the tragedy was optional - just as chopping wood in the forest is optional.  If, however, the activity which caused the death was part of a mitzva (chiyuv, not reshut) for example coercing a child or student to study Torah, no punishment of exile would apply.


            The mishna, however, leaves one aspect of this category undefined: What exactly is the scenario of a shaliach beit din who is exempt from exile?  This question is the source for a dispute between several Rishonim which will be addressed in this week's article.


            Rashi asserts that the mishna is referring to the person assigned with administering malkot.  If beit din estimated that the person could receive a certain number of 'lashes' and while this amount was being administered the victim died, the bailiff, though negligent, does not go to galut since he was performing a mitzva.  The position of Rashi elicits much protest from other Rishonim.  After all, in this scenario the bailiff's exemption from galut has little to do with the formal categories of reshut and mitzva!!  If beit din approved 25 lashes, for example, based on their medical examination and the bailiff implemented this sentence he should be considered an outright 'oness' for complying with the will and medical assumptions of beit din.  Why does the mishna excuse him solely based on his participation in a mitzva?  Though Rashi's explanation appears halakhically sound (the bailiff should not be exiled) the logic supplied by the gemara seems superfluous!


            Quite possibly, Rashi's explanation forces us to more closely examine the parameters of oness.  Indeed the bailiff merely implements the will of beit din.  Yet, having witnessed the offender growing weaker and weaker with every stroke, should he not have ceased delivering malkot or at least informed the court that possibly their prognosis was erroneous?  Or can he blindly follow his orders safe in the notion that he is exonerated of any culpability simply because he is following the court's directives?  This question which has obvious moral implications might revolve around the halakhic definition of oness itself.


            The Ra'avad offers a slight alternative to Rashi's explanation.  According to Rashi, the death occurred as a result of administering the sentenced amount of lashes.  According to the Ra'avad, the mishna refers to a bailiff who administers an extra lash - beyond the number proscribed by beit din.  In this instance, we cannot excuse him simply because of oness for he deviated from beit din's ordinance.  The only exemption would stem from his having been involved in the performance of a mitzva (administering a court penalty).


            The Ra'avad's position though seems to conflict with an explicit gemara.  The mishna in Makkot (22b) discusses two scenarios of death which occurs while receiving malkot.  The second situation discussed is exactly the Ra'avad's case.  Unfortunately, the mishna seems to rule directly against the Ra'avad's position.  "Hosif lo retzu'a achat (if the bailiff administered an extra lash) u-meit (and the victim died) harei zeh goleh (the bailiff is exiled).  The mishna itself addresses the scenario of the Ra'avad but obligates the bailiff to be exiled.  Evidently, by adding a lash the bailiff has strayed from the actual performance of the mitzva (there is no mitzva to administer this extra lashing) and cannot be excused based upon having performed a mitzva.  How, then, can the Ra'avad interpret the mishna (8a) as saying the exact opposite - namely that a bailiff who adds a lash is exempt from galut for having performed a mitzva?


            We might suggest the following distinction to reconcile the Ra'avad's position.  There might be a difference between adding a 40th or 41st lash and adding a 19th to someone who was only sentenced to 18.  The 40th or 41st lash has no halakhic significance since no one ever legally receives this amount.  Adding this extra lash is completely deviant and in no way can it be set within the framework of the performance of the mitzva.  We cannot define as a mitzva the administering of a 40th lash.  However, an extra lash beyond the reduced sentence (reduced for medical reasons) might have a different status.  Adding a 19th lash might in some way still be considered part of the mitzva (even though it is extra) and the bailiff might be excused from galut for having killed with this lash.  Said otherwise, the mishna (22b) might be referring to a bailiff who adds a 40th or 41st lash.  This person is exiled and his crime cannot be considered a crime during the performance of a mitzva.  The Ra'avad, however, might be referring to a bailiff who adds a 19th lash to someone sentenced to only 18.  This lash, though extra, might be seen as part of the mitzva and the bailiff might be spared galut.  Indeed, the Ra'avad's language does indicate that he refers to such a case.  He writes that the bailiff who administers more than the court 'appraisal (omed)' is not exiled.


            This explanation might depend upon our understanding of the halakha of omed (the process of estimating the medical condition of the sentenced party and adjusting the amount of lashes to be received, appropriately).  We might simply claim that in theory every sentenced person really deserves 39 lashes.  However, pikuach nefesh (saving a life) is docheh (takes precedence) any other consideration (with few exceptions).  In principle, each person receives 39 lashes but in practice the number must be reduced to sustain his life.  Alternatively, we might view the halakha of omed in a totally different light and as a more inherent part of the malkot penalty.  We might claim that conceptually pikuach nefesh does not apply to someone who receives malkot. Several statements by the gemara and the Rishonim might indicate that malkot is a 'form' of capital punishment.  After all, someone who commits any sin, might in truth deserve to die.  For example, the gemara in Sanhedrin contemplates requiring a court of 23 people (usually reserved for capital punishment cases) to try a case of malkot.  As the gemara explains "malkot is a form of mita" ("malkot bimkom mita omedet").  (See especially Rashi's comments to that gemara and the Rambam Hilkhot Sanhedrin 16:1.)  We should not mitigate the number of lashes merely to protect the life of the sentenced criminal.  If malkot is a form of mita we cannot reduce the lashes to prevent death!!!


            Why, then, do we conduct a medical examination and reduce the penalty accordingly?  Why not administer 39 and let the "chips fall where they may?"  We might claim that 39 is not a basic or fundamental number of required lashes.  Instead of defining a generic number, the Torah merely dictates the maximum allowed number.  Fundamentally, though, each sentenced person deserves the amount he can handle, not to EXCEED 39.  Omed is not an adjustment to the standard 39 as a concession to pikuach nefesh.  Instead, it plays a central role in determining the exact sentence of the convicted person.


            This question - whether every person in theory deserves 39 or in principle only deserves the amount which was diagnosed - directly affects the distinction drawn in the Ra'avad.  The ability to differentiate between adding a 40th or adding a 19th assumes that every person in theory deserves 39 lashes.  If so, then even after being sentenced to a reduced amount of 18, on principle the victim really deserves 39.  The adjustment is an external adjustment based upon pikuach nefesh.  However, he really deserves 39 and the bailiff who adds a 19th lash can be seen as involved in the mitzva.  The same cannot be said about someone who exceeds 39; he is in no way administering a halakhically ordained lash.  If, however, on principle a person only deserves the amount of lashes based upon his medical diagnosis, there might be little difference between adding a 19th lash and adding a 40th.  In either case, the extra lash is in no way halakhically ordained and we could not distinguish between them.




            We have examined the positions of Rashi and the Ra'avad each of whom interpret the mishna as referring to a bailiff who negligently murders while administering a malkot penalty.  According to Rashi, the mishna refers to a henchman who followed the instructions of beit din, while according to the Ra'avad the mishna refers to a bailiff who independently adds a lash beyond the medically determined amount.


            The third major position is adopted by the Rambam.  He differs dramatically from Rashi and the Ra'avad in his description of the type of shaliach to whom the mishna refers.  Whereas according to the former positions, the shaliach of the mishna is the court-appointed bailiff, according to the Rambam he is the messenger of the court sent to subpoena a litigant to court.  Halakha allows him to physically coerce the recalcitrant litigant to appear for judgment.  If, while forcing a litigant to appear, he negligently murders the person, he is excused from exile since he was involved in the performance of a mitzva (see the Rambam Hilkhot Rotzei'ach u-Shmirat Nefesh).


            Though the Rambam's position seems feasible there might be a concern which prevented others from adopting this explanation.  The mishna presents his exemption from galut as arising from his involvement in the performance of a mitzva.  In the case of the court messenger his exemption should be provided for another more basic reason: He is acting purely as a court agent, as a formal shaliach of the beit din.  If anyone deserves galut it is clearly beit din who sent him to subpoena a litigant and to physically ensure the latter's court appearance.  Why must the mishna excuse him based on his performing a mitzva when a more fundamental exemptions would apply?  Rashi and the Ra'avad might not confront this issue in the instance of the bailiff who administers the lashes.  Though he is a court-appointed official, he is not acting merely on behalf of the court.  Each and every Jew might have an obligation to administer malkot and for practical reasons the court implements this obligation.  In essence though, the bailiff is administering a penalty on his own behalf; the court has merely designated him as the one to administer this penalty.  In theory, then, if he negligently murders during the lashes he might be culpable had he not been involved in a mitzva.  The same cannot necessarily be stated about the messenger sent to subpoena who is acting exclusively on behalf of beit din and whose excuse for not being exiled should not be limited to his involvement in a mitzva.