[Avodah] Vigilantism (was: Mechallel Shabbos to destroy a non-kosher phone)

[Micha Berger]

Hirhurim - Torah Musings

Vigilantism, Anarchy and Jewish Law
July 3, 2012

I. Preventing Sin

Like all legal systems, Jewish law allows for its enforcement. Courts
are empowered to compel action and forcibly prevent misdeeds. But courts
are not always sufficiently speedy and sometimes individuals need to
act. Perhaps surprisingly, Jewish law affords individuals certain rights
to enforce its rules without prior authorization. In a prior post,
we discussed whether a mugging victim may kill his attackers (link
<http://torahmusings.com/2010/01/vigilantism-in-jewish-law/>). Here we
will discuss an individual proactively coercing another to prevent sin.

The key principle is Afrushei Me-Issura, separating someone from or
preventing sin. Not only is a parent obligated to keep his older child
from sinning, for example eating non-kosher food, all Jews must attempt
to prevent this sin (Rema, Orach Chaim 343:1; Mishnah Berurah, ad loc.
7). We are a community, each responsible for the other (Sanhedrin 27b).
The Minchas Chinukh (239:6) locates the precise source for this obligation
regarding adults in the prohibition to watch idly as a fellow dies
(Lev. 19:16). We must be concerned for another's spiritual welfare in
addition to his physical. How far must we take this?

The Gemara (Bava Kama 28a) states that a former master may forcefully
send forth a freed slave who wishes to remain with his slave wife,
permitted to him in his former slave status but now forbidden to him in
his freed status. With what right does a man hit another free man? The
obligation to prevent another Jew from sinning.

II. Preventing Others

The Terumas Ha-Deshen (1:218) deduces from this Gemara that a person who
witnesses someone under his supervision committing a sin may hit him to
stop him from sinning. He explicitly permits doing this without obtaining
court authorization. The Rema (Choshen Mishpat 421:13) rules like this
Terumas Ha-Deshen. R. Alfred Cohen ("Taking the Law Into One's Own Hands"
in The Journal of Halacha and Contemporary Society XXXV, Spring 1998,
pp. 12-13) includes among those under a person's supervision: children,
students and others in similar situations. Ostensibly, this permits
corporal punishment-spanking-in homes and schools, as well as certain
forms of wife beating and husband beating. However, as we will see,
there are important conditions that must prevail before allowing such
preventive punishment.

The Rosh (ch. 3 no. 13) extends this Gemara's permission further. He
writes that if one Jew is hitting another, a third person may hit the
attacked to prevent him from sinning. The Rosh's choice of language
is important. He does not say that you may resort to violence against
a violent attacker. He says that you-an individual, not a court-may
hit him to prevent him from sinning. Significantly, the Shulchan Arukh
(Choshen Mishpat 521:13) quotes this Rosh with the rationale intact.

Similarly, the Maharshal (Yam Shel Shlomo, Bava Kama 3:9), after quoting
the Terumas Ha-Deshen, deduces from the above Gemara that any Jew may
hit another to separate him from sin: "כל בר ישראל יכול להכות חבירו כדי
לאפרושי מאיסורא."

III. Debating Coercion

While it would seem from the preceding that the Mechaber, the author of
the Shulchan Arukh, and the Rema disagree on the extent of the permission,
I believe this is incorrect. After the Mechaber quotes the Rosh's broad
permission, the Rema states "and also (ve-khen)" and quotes the Terumas
Ha-Deshen. He seems to me to affirm the Mechaber`s position.

The Ketzos Ha-Choshen (3:1) and the Nesivos Ha-Mishpat (3:1) seem to
disagree whether a court must authorize coercion to refrain from
sinning or an individual may do it without authorization. The
Nesivos infers that the Ketzos opposes individual action and
disagrees. However, in the Ketzos`s response to the Nesivos,
called Meshovev Nesivos, he seems to concede on this point (link
<http://hebrewbooks.org/pdfpager.aspx?req=22262&st=&pgnum=11>). He
explicitly allows an individual to hit his fellow to prevent him from
violating a prohibition.

R. Hershel Schachter (Eretz Ha-Tzvi 40:4, p. 261) quotes the Shakh`s
explanation of the Bach that a person may act without court authorization
because "it is as if he stood in judgment" (Tekafo Cohen, ch. 24). In
other words, a person serves as a messenger, a representative, of the
court. Therefore, R. Schachter continues, a person can forcefully prevent
his fellow from sinning just like an official court representative may.

IV. Violent Protests

R. Moshe Sternuch (Teshuvos Ve-Hanhagos vol. 1 no. 368 - link
<http://hebrewbooks.org/pdfpager.aspx?req=20025&st=&pgnum=257>) was
asked whether a child may destroy his parents' television. Assuming
that doing so constitutes preventing committing a prohibition, R.
Sternbuch quotes the Nesivos and Ketzos whether a person requires court
approval to do so. I'm not sure why he states that the Ketzos
disagrees. Perhaps he reads the Ketzos as only allowing action when a
sin is occurring and not in advance, but I find that reading
implausible. Regardless, R. Sternbuch rules like the Ketzos as he
understands it and forbids the destructive behavior.

However, if we accept that a court's prior approval is unnecessary, is
such a child justified in attempting to force his parents to avoid
violating a prohibition? Are the Charedim who throw stones at car
drivers on Shabbos justified in using violence to prevent those
violations? There are three other reasons why this would not be
allowed:

 1. R. Alfred Cohen (ibid., p. 13) emphasizes the Maharshal's (ibid.)
    concluding condition. Only someone who is "undoubtedly known for
    his rectitude, about whom it is known that he is acting strictly
    for the sake of heaven, and that he is a person who is important and
    outstanding [in the community]" may act to forcefully prevent another
    from sinning. This condition only allows for responsible intervention.

 2. R. Hershel Schachter (ibid., n. 5) argues that physical coercion is
    only allowed if it is pedagogically effective. There was a time
    when corporal punishment served as an important educational tool.
    However, as R. Shlomo Wolbe argued, that is no longer the case (link
    <https://www.amazon.com/dp/1881927199/ref=as_li_ss_til?tag=hirhurimmusin-20&camp=0&creative=0&linkCode=as4&creativeASIN=1881927199&adid=17BBC3FY0CFA0QCZYXD3&).
    Today, someone who breaks a television or diverts a car on Shabbos
    only forces the victim of his violence to buy a new car or drive
    somewhere else. He does not prevent the sin and, therefore, is
    forbidden to use violence.

 3. Additionally, the Maharshal (ibid.) states that violence must be
    the last resort. You must repeatedly attempt to persuade the person
    to refrain from sinning, using all available methods until only
    force is left. Presumably, if a court is available you must also
    submit to its power before resorting to personal force.

Vigilantism is dangerous. It quickly leads to anarchy, a state that is
inhospitable to communal stability and religious growth. However, the
Torah is meant for all times and places. Circumstances can exist in which
courts are impotent, ineffective or non-existent and an individual's
ability to assert the Torah's commands are needed. In those times,
personal initiative is required.