If the Faller Falls

In Pirkei Avos ("Wisdom of Our Fathers") 2:7 it says, "He (Hillel) also saw a skull floating in the water. He said, 'Because you drowned other, you were drowned, and those who drowned you will eventually be drowned.'" Rabbeinu Bachya, in his sefer Chovos HaLevavos ("Duties of the Heart", written in 1040) asserts that all monetary loss and physical harm that befall a person are decreed in the Heavenly court. The Ohr HaChaim ("Light of Life", Rabbi Chaim ibn Attar), along with others, disagrees with Rabbeinu Bachya in this, stating instead that Heavenly decrees are fulfilled primarily in natural ways, and only secondarily through human hands. Furthermore, a person of high criminal drive may also act out their violent desires on those without a specific Heavenly decree. Based on this secondary opinion by the Ohr HaChaim, criminal cannot claim to simply being messengers of the Divine Will, as it states in Makkos (10b), "Bad things come from bad people." The Rambam (Maimonides) writes that this is why the Egyptians were punished for enslaving Israel, which was clearly something that had been Divinely decreed against the people.


The Ruach HaChaim, in his commentary on this particular portion of Pirkei Avos, cites Devarim (Deuteronomy) 22:8, "Make a fence for your roof so that you will not place blood in your home if the faller falls from it." The language of the Hebrew states explicitly "ki yipol hanofeil mimenu," or "if the faller falls from it," showing that the one who falls in such a case is someone who is already destined to die by falling due to a Divine decree. The fact that the Torah still finds the owner of the building liable for the faller's death shows that we can act in ways which remove ourselves from the place of arbiter of Divine punishment. In the case of the drowning victim, even if he died because of his own misdeeds, those who drowned him will also be punished.

In the written Torah itself, several activities carry with them punishments that are in the form of the death penalty. The Oral Torah, however, which contains the details regarding the specifications for such punishments outlines an intricate set of requirements:
1. Two legally proper witnesses must see the perpetrator on their way to commit an offense that requires capital punishment.
2. The two witnesses must both warn the perpetrator of the consequences of committing such a crime.
3. The perpetrator of the crime must give clear acknowledgement as to the consequences, and then continue with the desired course of action.
4. An elaborate set of judicial procedures, including rigorous examination of witnesses and limited means of introducing evidence, had to be carried out with complete success.
All of these requirements were to limit the executions carried out by the beis din (court) in ancient Israel. Indeed, when the Jewish people began to decrease in their piety, and there were doubts in their ability to carry out the judicial specifications in the most detailed way, the Sanhedrin recused themselves and all other Jewish courts of being able to carry out capital punishment. This, then, placed the Divine decree completely in the hands of the Divine through natural phenomena.


A famous discussion regarding the death penalty takes place in Makkos (one of the groups of the Mishnah), with Rabbi Akiva and Rabbi Tarfon on one side, and Rabbi Shimon ben Gamliel on the other. The mishna cites that a court which killed one person in seven years was considered destructive, and some opinions even stated that a court which killed on person in seventy years was considered destructive. Rabbis Akiva and Tarfon then assert that had they lived during the time when the Sanhedrin carried out capital punishment (as they were born several generations later), their own attention to detail would have made their rigorous examination of the case so intense that no person would ever be able to be found guilty in such a case.

(Written in honor of Harav Levi Yitzhcok ben Sorah Sosha, ztzv'kl, the Bostoner Rebbe, who was niftar on Shabbas parshas Vayishlach.)