[Avodah] Ben Noach legal systems (was: Abortion is not Murder?)

[Chana Luntz]

RMB originally wrote:
>> I would split this question further: there are the actual issurim of 
>> the other six mitzvos, and there is the penalty the courts are 
>> expected to mete out when implementing the 7th. Even if one holds 
>> that the legal system a Noachide society has to establish must 
>> include every din of the Beris Noach, that doesn't mean that they all
>> have to be established as dinei nefashos.

And I replied:
: This split though is not tenable, as this is specifically discussed
: in Sanhedrin 57a, and suggested as a hava mina, but the maskana appears
: to be with Rav Nachman bar Yitzchak- Azharah shelhen hu mitaten.

And RMB further replied:
> I am failing to find any mention on Sanhedrin 57a about how nakhriim are
> supposed to be judging eachother in the courts they set up.

Sorry, I think I misunderstood your passage (at the top).  It seemed to me
that RYK was postulating something along the lines of your 1. Below.  Then
you came and added to the question with you "I would split this question
further".  As I understood your further split, it was an attempt to separate
the azhara for the sheva mitzvos from the penalty - and that is why I said
that your split was not tenable, as it was discussed in the gemora, and, it
seemed to me, rejected.

But it seems from what you have now said above and below, that this was not
your "further split" - although that means that I don't understand what your
further split adds to RYK's suggestion - as far as I can see it seems now to
be discussing exactly the distinction that RYK made.

> Rather, it could well be about how our courts should be judging them. 

Does this not assumes that we are expected to take on the role of world's
policeman?  This is a huge task and yet does not appear to be contemplated
anywhere else.  Note of course in terms of a Yisrael both judging and
carrying out the sentence is a mitzvah (see Yevamos 6b, where the hava mina
is that the pasuk requiring the carrying out of the sentence when a person
is subject to a mishpat maves should even be doche shabbas).  Are you
postulating a mitzvah on us similarly to judge not only ourselves but the
rest of the world?   Our mitzvah to judge ourselves is subject to a whole
range of limitations - such as needing to be in the lishgas hagazis for the
fixed death penalties etc.  What limitations are there on any such mitzvah
in your formulation (other than one witness and one judge)?   Note also that
the Ramban appears to reject this "world policeman" idea in his explanation
of why Ya'akov was so angry with Shimon and Levi.  That is, it is not our
job to be the world's policeman - and surely even the Rambam (at most) only
understands this as being appropriate in circumstances where the world is
failing itself to set up a justice system (and, perhaps, where it was our ox
that was gored, namely vis a vis Dina), otherwise would he too not need to
list it as a mitzvah incumbent upon us if that was the position?

> But in any case, it's more about the principle of chiyuv misah and which
> aveiros generate it than the actual execution.

That is precisely the question.  Are we discussing a chiyuv misa?  Once you
start saying you are discussing a "chiyuv misa" then all any court is ever
doing is establishing the evidentiary case to allow this, and carrying out
what is required.  In order to understand the gemora as talking about a
"licence if they so choose" you need to understand this earlier gemora as
talking also about this licence, not a chiyuv misa, ie the chiyuv misa only
fixes at the point at which judgment is made, not at the point at which the
averah is actually carried out.  That is precisely the position held by the
Hagahos Ashri I brought in a previous posting - ie there is no "chiyuv misa"
hanging over any violator until they are judged in a court.  

The reason why I think most people intuitively do not read the gemora this
way, is because that is not generally the halacha for averos committed by a
Jew.  We have just finished saying the al chets, including the "al chatayim
sheanu chayavim alehem arbah mitos beis din" - if it were true that unless
and until any one of us was judged in beis din, none of us carried any form
of chiyuv misa, what is this all about?  And in addition, we have all these
other consequences - obligations to bring korbanos if b'shogeg, chiyuvim of
kares, misa beyadei shamayim etc etc, that unquestionably come by themselves
and do not need the intervention of a judicial system to make them "chal".  

But it may well be that we need to take off our "how things are understood
for Jews" hat.

> More to the point might be 57b. I first thought it was possible that R'
> Yaaqov bar Acha at the top of the amud could be taken as the start of a new
> sugya. But R' Yishmael's subsequent af al >ha'ubarin makes it clear we're
> still in the middle of discussing what earns a chiyuv misah under the 8
> mitzvos.

>Still, RYBA says that a BN is killed with 1 dayan, with 1 eid, within
> hasra'ah -- if the eid is male, even a qarov. If he talking about the
> minimum for a Noachide-7th-Law court? If so I would agree that the 7th
> mitzvah includes enforcing the other six. But not that they are obligated to
> meet out capital punishment, it could be they are licensed to if they so
> choose because the person is chayav misah.

But once you have a chiyuv misa for all the situations where it is brought
up - including geneiva of less than a shava pruta - you have an entire
population that is ruba d'ruba chayav misa, which would then mean that the
court would have the discretion to go execute for anything, because
invariably the person has done something that would obligate them in misa
and if they didn't get them for the thing they judged them on, then that
wouldn't matter, as they would surely be chayav for something else.

Rather I think that once you are discussing a licence you have to understand
it as not being a "chiyuv" misa at all but a "reshus" to kill, but only in
limited circumstances.  Ie there is a fundamental issur to kill as part of
the sheva mitzvos, but that mitzvah is limited by the permissibility to kill
for certain averos where such killing is carried out by a bone fide legal
system that contains a minimum of due process, namely 1 eid and 1 dayan.

> Or, RYBA could be saying that a court of 1 Jewish dayan may / is charged to
> execute a BN who lives in its jurisdiction on the word of one witness who
> could be any non-related man (Yehudi or >nachri).

> And so I still think there are three ways one could in principle (not
> saying any rishonim or acharonim actually take each of the three
> positions) understand the Noachide chiyuv of setting up a legal system:

> 1- to enforce the 7MBN, and RYBA is talind about non-Jewish courts having
>    license for capital punishment);

That is how I understood RYK's original suggestion.

> 2- to enforce the 7MBN *and* implement the chiyhuv misah (except in normal
>    cases of geneivaah); or

This seems often to be the understanding of the "hamon am", as I said above,
probably because if one does not think too hard about it, it seems logical
to extend the way things work for Jews to the non Jewish system. 

>3- to create their own laws as necessary for a safe society, and RYBA is
>   talking about one Jewish dayan not the 7th mitzvah.
   
>   In this 3rd position, the resulting courts could be a fulfillment of
>   this particular mitzvah even if they didn't address those of the 7
>   mitzvos which are BALM (AZ and birkhas hasheim). And it's possible
>   this particular mitzvah wouldn't need to include legally enforcing
>   border cases like euthenasia or abortion.

Within this you could have two options - that it is reshus for a Jewish
court, or an obligation.  If obligation, it seems to me to get into the
untenable position of requiring us to be the world's policeman.  If reshus,
it is hard to see on what basis we have that reshus and the non Jewish court
system doesn't (the psukim that deal with this are specified to be the
universal ones, not ones specific to us).  Which gets us back to 1.

In any event, it has been pointed out to me that R YE Henkin in Teshuvot
Ivra -- Kitvei HaGra Henkin Siman 115 page 230 in the footnote discusses this
and comes down firmly on the side of reshus, ie in accordance with the
suggestion of RYK.  I thought it worth seeing his language inside:

הנני להעתיק כאן מה שאמרו חז"ל: בני נח אזהרתן זוהי מיתתן, ונדונין בעד אחד
ובדיין אחד,  הוא ע"פ המבואר (במס' סנהדרין נו) שבחשבון ז' מצוות בני נח יש
דינים, וכוונה שמחוייבים להעמיד דיינים במחניהם, ודיינים אלה יש להם כח לדון
אפילו בדיין אחד ועל פי עד אחד.  ודוגמא לזה בית דין של ישראל שלעת ההכרח  מכין
ועונשין אפילו שלא כדברי תורה (סנהדרין מו).  אבל בישראל הוא רק במקרה, שהרי יש
להם הלכות קבועות "ואלה המשפטים".  אבל באינו יהודי תמיד הוא כן, שהרשות בידם
אם רוצים ע"פ תקנת המקום, אבל ודאי שראוי להם לחוקק חקים ישרים כעין ארצות
הברית, שרק ע"פ רבים מכין ועונשין.  ואפשר להשתמש בשאר מיני עונשין או לפטור
לגמרי.   וראיות רבות לזה מהתנ"ך.  
ולצערנו רבים משתבשים בכוונת המאמר.  וע"י זה דבורים סרה בחז"ל.
וכן בדיני ישראל בדין מכת מרדות, שהרמב"ם כתב בזה שמכין אותו עד שתצא נפשו,
הכוונה שלעת הצורך שכופרים בחז"ל בפרהסיא יש רשות לבי"ד לזה.  ומבואר כמה פעמים
בתוס' שהוא ע"פ דעת בי"ד.  ורובה דרובה פוטרין אותו לגמרי.  וכן מה  שאמרו
בסנהדרין פא: מי שלקה ושנה מכניסין אותו לכיפה, ומבואר בגמורא שם ענין כיפה מלא
קומתו. הכוונה היא שיש רשות בידם לפעמים להשתמש בכיפה כזו.  אבל פשטות כיפה הוא
בית הסוהר.  שנוטלים חופשתו ומאכלו להם צר -- על זמן -- הכל לפי חטאו וישרים דרכי
ה'.

(Here is my rough translation):

Behold I will shift here to that which is said in Chazal: Bnei Noach their
warning is their death, and they are judged with one witness and one judge,
this is according to that which is explained (in mesechet Sanhedrin 56) that
in the count of the seven commandments of bnei noach there is "laws", and
the intention is that they should be obligated to appoint judges in their
dwelling places, and to these judges there is to them the strength to judge
even with one judge and according to one witness. And the example to this
is a beit din of Israel which in a time of need can beat and punish even not
in accordance with the Torah (Sanhedrin 46). But with Israel this is only
incidentally since behold there is to them fixed halachot "and these are the
statutes", but for a non Jew it is always so, that there is permission in
their hand if they want according to the decree of the place, but indeed it
is fitting for them to establish just laws like the United States, that only
by way of a majority they can beat and punish. And it is possible to
utilise alternative types of punishments or to exempt completely. And there
are many proofs to this from the Tanach.
 And to our sorrow many are confused in the intention of the saying. And by
way of this they turn aside from Chazal.
 And so with the laws of Israel with the law of lashing for rebellion, that
the Rambam writes on this that they lash him until his soul leaves him, and
the intention is that according to the need of the time when they deny
Chazal publically there is permission for Beis Din to do this. And it is
clear in many places in Tosphos that this is according to the opinion of
Beis Din. And many, many times they exempt him completely. And that which
is said in Sanhedrin 81b one who was lashed twice they cause him to enter to
a "kipa", and it is explained in the gemora that it refers to a kipa of
precisely his height. The intention being that there is permission at times
for them to utilise a kipa such as this. But the simple explanation of a
kipa is a prison. That they take from him his freedom and his food is
restricted -- for a time, and all is according to his sin and being
straight in the ways of Hashem.

Regards
Chana