Daf Ditty Moed katan 17: The Maid behind the Rebbe

And the maid who was a Rebbe (Ludmir)

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 Ketubot 104a

Rav Yosef said: A Torah scholar may execute judgment for himself with regard to a
matter about which he is certain, and he is not required to first go to court and have the case

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decided for him. The same applies when another person behaves in a disrespectful manner
toward him; he is permitted to go ahead on his own and ostracize him.

Steinzaltz

Rav Yosef said: A Torah scholar may execute judgment for himself with regard to a matter
about which he is certain, and he is not required to first go to court and have the case decided for
him. The same applies when another person behaves in a disrespectful manner toward him; he is
permitted to go ahead on his own and ostracize him.

There was a certain Torah scholar who gained a bad reputation due to rumors about his
conduct. Rav Yehuda said: What should be done? To excommunicate him is not an option.
The Sages need him, as he is a great Torah authority. Not to excommunicate him is also not an
option, as then the name of Heaven would be desecrated.

Rav Yehuda said to Rabba bar bar Ḥana: Have you heard anything with regard to this
issue? He said to him: Rabbi Yoḥanan said as follows: What is the meaning of that which is
written:

‫ ותוֹ ָרה‬,‫ﬠַד ת‬-‫וּ‬

ַ ‫שׁ ְמר‬
‫ְי‬ ‫ ְפ ֵתי ֵהן‬-‫ז ִכּי‬ 7 For the priest's lips should keep knowledge, and they
‫כ‬ ‫ִשׂ‬

-‫ יה ָוה‬a‫ְל ַא‬ ‫ִכּי‬ :‫ִמפּיהוּ‬ ‫ַב ְקשׁוּ‬ should seek the law at his mouth; for he is the messenger
‫מ‬ ‫ְי‬
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.‫ הוּא‬,‫ְָצבאוֹת‬ of the LORD of hosts.

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 Mal 2:7

“For the priest’s lips should keep knowledge, and they should seek Torah at his mouth; for he
is a messenger [malakh] of the Lord of hosts” ? This verse teaches: If the teacher is similar to
an angel [malakh] of the Lord, then seek Torah from his mouth, but if he is not pure and
upright, then do not seek Torah from his mouth; even if he is knowledgeable about Torah, do
not learn from him.

Based on this statement, Rav Yehuda ostracized that Torah scholar. In the end, after some time
had passed, Rav Yehuda took ill and was on the verge of death. The Sages came to inquire
about his well-being, and the ostracized scholar came along with them as well. When Rav
Yehuda saw him, that scholar, he laughed.

The ostracized scholar said to him: Was it not enough that you excommunicated that man,
i.e., me, but now you even laugh at me? Rav Yehuda said to him: I was not laughing at you;
rather, I am happy as I go to that other world that I did not flatter even a great man like you,
but instead I treated you fairly in accordance with the halakha.

Rav Yehuda died. The ostracized scholar came to the study hall and said to the Sages: Release
me from the decree of ostracism. The Sages said to him: There is no man here as eminent as
Rav Yehuda who can release you from the ostracism. Rather, go to Rabbi Yehuda Nesia in
Eretz Yisrael, as only he can release you. That scholar came before Rabbi Yehuda Nesia.

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Rabbi Yehuda Nesia said to Rabbi Ami: Go and examine his case. If it is necessary to release
him from his decree of ostracism, release him on my behalf.

Rabbi Ami examined his case and thought at first to release him from his ostracism. But Rabbi
Shmuel bar Naḥmani rose up on his feet and said: If the maidservant in the house of Rabbi
Yehuda HaNasi once ostracized another person, and the Sages did not relate frivolously to her
decree of ostracism and did not revoke it until three years had passed, all the more so, with
regard to a decree of ostracism placed by Yehuda our colleague, we must take it seriously and
not release this scholar.

The Gemara asks: What is the story mentioned by Rabbi Shmuel bar Naḥmani involving the
maidservant in the house of Rabbi Yehuda HaNasi? It was related that the maidservant in
Rabbi Yehuda HaNasi’s house saw a certain man who was striking his adult son. She said:
Let that man be excommunicated, due to the fact that he has transgressed the injunction:

‫ ל ֹא‬,‫ְפ ֵני ﬠ ֵוּר‬ ‫ֵחרשׁ‬ ‫ת ַק ֵלּל‬-ְ‫יד א‬ 14 Thou shalt not curse the deaf, nor put a stumbling-block
‫ְו ִל‬

.‫ ִני ְיה ָוה‬,n‫ ֶהי‬k‫ֵתּן ְכ שׁל; ְ◌ ו ָיֵרא ֱא‬ before the blind, but thou shalt fear thy God: I am the LORD.
‫א‬ ‫מּ‬ ‫ִת ִמ ָת‬
Lev 19:14

“You shall not place a stumbling block before the blind” as it is taught in a baraita that the
verse states: “You shall not place a stumbling block before the blind,” and the verse speaks here
of one who strikes his adult son, as the son is likely to become angry and strike his father back,
thereby transgressing the severe prohibition against hitting one’s parent.

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Summary

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 And Still More Ostracism; Hair and Nail Cutting1

The rabbis continue to look at the practice of ostracism in amud (a). In amud (b) they move back to the topic of cutting
hair - and now nails - on the Intermediate Festival Days.

We are told a number of stories that help us understand exactly when, why, and how people were ostracized. Along
the way, we learn a great deal about power dynamics among Torah scholars, the effects of social status, mourning
practices, and other gems.

One of my favorites regards Rav Yehuda's maidservant, who ostracized someone who hit his adult (either over 22 or
24 years of age) son. She noted that he broke the halacha of "placing a stumbling block before the blind" (Leviticus
19:14). An adult son is likely to hit back, which would be breaking one of our most important Torah laws. Thus this
maidservant is described as both wise and upstanding, and her ostracism does not need to go before the court.

We are told about this incident as part of a larger story. Rav Yehuda had ostracized another Torah scholar, but Rav
Yehuda died before the punishment was completed. The ostraized man, who is not named, goes to great lengths to
release the decree. However, it is decided that he must live the remained of the three years of ostracism.

A great deal of thought is shared regarding ostracizing Torah scholars. Can they forego the courts if they note
behaviour that is consequence with ostracism? Can they ostracize themselves? Can they nullify those decrees? The
rabbis note the importance of public versus private transgressions. They wish to set only the most positive examples
of behaviour when they are in public. In private, however, sins carry a different significance.

It is noted that no one should learn from a Torah scholar who is not 'upright' in public. Even if he is Torah giant.

We also learn about how mourners, priests, nazirites and others should deal with hair and nail cutting during
Intermediate Festival Days. Specific prohibitions are directed at these groups. The Gemara looks at the exceptions
to these rules: when is a priest, for example, permitted to cut his hair during the Moed?

Rav Avrohom Adler writes:2

There was one young scholar who had a bad reputation (rumors were circulating that he was an
adulterer). Rabbi Yehudah said: What shall we do regarding this case? Shall we excommunicate
him? The rabbis need him (he was a teacher). Shall we not? The name of Heaven will be profaned.
He asked Rabbah bar bar Chanah: Did you hear anything about such a case? He answered him:
Rabbi Yochanan said: "It is written [Malachi 2:7]: The kohen's lips safeguards knowledge and
people seek Torah from his mouth, for he is like an angel of Hashem. That means: If the teacher
resembles an angel, Torah may be sought from his mouth, but not otherwise.

1 https://dafyomibeginner.blogspot.com/2014/08/
2 http://dafnotes.com/wp-content/uploads/2015/10/Moed_Katan_17.pdf

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Thereupon Rabbi Yehudah excommunicated him. Subsequently, Rabbi Yehudah was taken ill and
the rabbis made him a sick-call, among whom was also that young scholar. When Rabbi Yehudah
saw him, he laughed. He said to Rabbi Yehudah: Is it not enough that you excommunicated me,
you still laugh at me? Rabbi Yehudah answered him: I do not laugh at you, but in the World to
Come I will be proud to say that I was not biased even towards so great a man as you. When Rabbi
Yehudah died, the young scholar came to the Beis Medrash and asked to be absolved from the
ban, and the rabbis answered him: There is not here a man equal in esteem to Rabbi Yehudah to
absolve you. Go to Rabbi Yehudah Nesiah, and he may absolve you. He went to him. Rabbi
Yehudah Nesiah said to Rabbi Ami: Go and examine his case, and if found favorable, absolve him.
Rabbi Ami did so, and was about to absolve him when Rabbi Shmuel bar Nachmeini arose and
said: Even when the maidservant of the house of Rebbi excommunicated someone, the sages
respected it for three years, how much more so should we respect Yehudah our colleague. Rabbi
Zeira said: How did it happen that this elderly man came today to the Beis Medrash after an
absence of several years? It is evident that the young scholar should not be absolved from the ban.

The scholar left weeping, and on the way he was stung by a bee and he died. His corpse was
brought to the burial graves of the pious, and they did not accept it; he was then removed to those
of the judges, and was accepted. Why was this? For he acted in accordance with Rabbi Ilai’s ruling
cited in a braisa: If one cannot withstand the temptation, he shall go to a place where he is not
known, and shall dress in black and wrap himself in black and do as he please, but shall not profane
the name of Heaven openly. The Gemora proceeds to relate the occurrence with the maidservant
of the house of Rebbi. The maidservant of the house of Rebbi saw once one beating his grown-up
son, and she said: Let that man be excommunicated, for he has transgressed the commandment
[Vayikra 19:14]: You shall not put a stumbling block before the blind (the son might retaliate and
transgress the prohibition against striking his father).

Rish Lakish was watching an orchard, and there came a certain man and ate some of the figs. Rish
Lakish shouted to him not to do it, but he paid no attention to him. Rish Lakish then said: Let this
man be excommunicated. The man answered him: On the contrary, let that man be
excommunicated; for if I am responsible to pay the damages, am I then liable to be
excommunicated? When Rish Lakish came to the Beis Medrash, he was told: His
excommunication towards you is valid, but not yours. Rish Lakish asked: Is there a remedy? They
told him: Go and ask his pardon. But I do not know where to find him, Rish Lakish replied. He
was told: You have to go to the Nasi in order to be released, as we have learned in a braisa: One
who was been excommunicated and he does not know by whom; he must go to a Nasi in order to
be absolved.

When Mar Zutra the Pious was compelled to excommunicate a young scholar, he first
excommunicated himself and then the young scholar. When he entered his residence, he first
absolved himself and then the young scholar. Rav Gidel said in the name of Rav: A Torah scholar
may excommunicate himself and afterwards, he may revoke it himself. Rabbi Papa said: I may be
rewarded since I have never excommunicated a young scholar. What would he do if a scholar was
deserving of excommunication? He would do as they did in Eretz Yisroel; they administered lashes
to him (they regarded lashes as a less severe form of punishment and were concerned for the honor
of the scholar).

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The Mishna had stated: A nazir and a metzora may take a haircut during Chol Hamoed. The
Gemora cites a braisa: One who arrives from overseas, or he was freed from captivity, or he left
prison may take a haircut during Chol Hamoed provided that he did not have time prior to the
festival; a nazir and a metzora can take a haircut during Chol Hamoed even if he did have time
prior to the festival since we do not want their korbanos to be delayed any longer.

The Gemora discusses a case where a mourner’s seventh day of mourning falls out on Shabbos,
which was the day prior to the festival. One Tanna maintains that part of the day is like the entire
day and the seventh day counts for the last day of mourning and the first day of the sheloshim
(thirty days of mourning); since he cannot cut his hair on Shabbos, he may cut his hair during Chol
Hamoed. Another Tanna disagrees because he holds that a part of the day is not like the entire day
and therefore the sheloshim would not begin until Sunday; it emerges that he could not have cut
his hair on the seventh day even if it was a weekday. Shabbos did not prevent him from cutting his
hair and therefore he cannot cut his hair during Chol Hamoed.

PLACING A STUMBLING BLOCK IN FRONT OF A BLIND MAN

The Chazon Ish (Y”D 62:25) wonders if one would transgress the prohibition against placing a
stumbling block in front of a blind man if the man subsequently does not fall into the trap. If one
would hit his adult son and the son would accept the rebuke lovingly and would not retaliate and
hit the father back, is it still regarded that the father placed a stumbling block in front of his son.
He cites our Gemora which relates the occurrence with the maidservant of the house of Rebbi. The
maidservant of the house of Rebbi saw once one beating his grown-up son, and she said: Let that
man be excommunicated, for he has transgressed the commandment [Vayikra 19:14]: You shall
not put a stumbling block before the blind (the son might retaliate and transgress the prohibition
against striking his father). It would seem that the maidservant excommunicated the father
immediately upon seeing the father hit the son even prior to the son retaliating. Reb Itzele (Peri
Yitzchak 2:49) maintains that one is not transgressing this prohibition unless it results in a
transgression, but the maidservant nevertheless had the right to rebuke the father immediately since
one cannot place someone else in a position where he might transgress a prohibition and this was
cause enough for the excommunication.

TAKING THE LAW INTO ONE'S OWN HANDS

Rav Mordechai Kornfeld writes:3

The Gemara quotes Rav Yosef who says that a Talmid Chacham (a Tzurba m'Rabanan) may "exact
justice on his own if the matter is clear to him."

Rav Yosef's ruling is difficult to understand. If he means that a Talmid Chacham is permitted to
seize an object which someone stole from him, in what way is this Halachah unique to a Talmid
Chacham? The Gemara in Bava Kama (27b) says that any person is entitled to reclaim an object
which someone stole from him and he is not required to go to Beis Din. On the other hand, Rav

3 https://www.dafyomi.co.il/mkatan/insites/mo-dt-017.htm

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Yosef certainly does not mean that a Talmid Chacham, when involved in a dispute over a monetary
matter, may analyze the case on his own and issue a Halachic ruling for himself. One is not allowed
to serve as a Dayan (judge) or even a witness in a case which involves his relative, and certainly
not in a case which involves himself!

The RA'AVAD (cited by the ROSH and the TUR YD 334) and RABEINU CHANANEL
explain that Rav Yosef does not refer to the right to issue a Halachic ruling for oneself or the right
to reclaim a stolen object on one's own accord. Rather, he refers to the authoritygranted to a Talmid
Chacham to issue a declaration of Niduy on someone who acted disrespectfullytowards him.

The Gemara earlier teaches that a Talmid may declare Niduy on someone who disgraced him but
the Niduy is not absolute; only the other Talmidim are required to observe it, but not their Rebbi.
Rav Yosef now adds that when a person disgraces a Talmid in a manner for which the Chachamim
specifically prescribed Niduy (for example, he called the Talmid a slave, an act which is punishable
with Niduy, as the Gemara in Kidushin (28a) teaches), it is a "matter which is clear" ("Milsa
d'Pesika") that the perpetrator deserves to be placed in Niduy. When the Talmid declares the person
to be in Niduy in such a situation, that Niduy must be observed by everyone, even by the Rebbi,
for it is considered as though Beis Din itself placed the person in Niduy.

However, RASHI (as cited by the TOSFOS HA'ROSH and the TUR; see also SHILTEI
GIBORIM) explains that the Gemara indeed refers to a situation in which someone owes money
to the Talmid Chacham. Rav Yosef rules that not only may a Talmid Chacham take back the money
owed to him (as every person may do, even one who is not a Talmid Chacham), but he may even
enforce his right to the money by declaring the other person to be in Niduy until the money is
returned. (A layman, in contrast, does not have this authority.) This is also the explanation of
the CHIDUSHEI HA'RAN.

The ROSH rejects this explanation based on the argument mentioned above: a Talmid Chacham
should not be allowed to judge his own case by himself because his judgment is biased. (See,
however, TESHUVOS HA'ROSH 6:25-26, where the Rosh apparently accepts Rashi's
interpretation of the Gemara, as HAGA'ON RAV YISRAEL ZEV GUSTMAN zt'l points out
in KUNTRESEI SHI'URIM 15:5.)

Rashi apparently maintains that the Halachah that a Talmid Chacham may place someone in Niduy
in order to get his money back is merely an extension of the Halachah that allows a person to do
justice for himself and take back a stolen item. Just as any person, even a layman, may take back
something that belongs to him, a Talmid Chacham is entitled to do even more and to enforce his
right to reclaim his object through a Niduy. The fact that he is biased does not affect the Halachah
that permits a person to do justice for himself.

The dispute between Rashi and the Rosh may depend on a basic understanding of the nature of the
Halachah that one may do justice for himself to reclaim a stolen object. The Rosh maintains that
this Halachah of "Avid Inish Dina l'Nafshei" ("a person may do justice for himself") means that
the person is not required to go to Beis Din in order to reclaim something which he knows is his,
because he does not need an official verdict ("Psak Din") to give him the right to reclaim his object.

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The proclamation of a Niduy, however, requires a Psak Din; a person is not vested with the
authority to issue a Psak Din on his own (and especially not for his own benefit), even a Talmid
Chacham.

Rashi, on the other hand, may understand that the Halachah of "Avid Inish Dina l'Nafshei" means
that a person is vested with the authority of a Beis Din with regard to reclaiming something that is
his. In other words, he is authorized to issue a Psak Din allowing him to take back an object that
was taken from him unlawfully (as described by Rav Gustman zt'l in Kuntresei Shi'urim to Bava
Kama 15:2-3 and 7). Accordingly, just as one may issue a ruling enabling him to take back his
object, he also may issue a ruling of Niduy (if he is a Talmid Chacham).

Rav Gustman zt'l himself (ibid. 15:5) suggests that the Rosh agrees that the Halachah of "Avid
Inish Dina l'Nafshei" grants a person the status of a Beis Din. However, the Rosh does not accept
the possibility that "Avid Inish Dina l'Nafshei" is expressed differently for a Talmid Chacham than
for a layman. Therefore, he assumes that the Gemara refers to a situation in which the rule of "Avid
Inish Dina l'Nafshei" does not apply at all. His question is that just as "Avid Inish Dina l'Nafshei"
does not apply in this situation (for whatever reason), making a Niduy against one's opponent is
not permitted in this situation.

SHITAS RIVAV (the nephew of the Ba'al ha'Me'or) explains (in his second answer) that the
Gemara means that not only may a Talmid Chacham reclaim an object that is his, but he may even
decide for himself that the law is in his favor and reclaim the object based on his interpretation of
the law. That is, he may issue a Psak Din on his own (as long as he later presents his arguments
before the court and they are accepted; Kuntresei Shi'urim ibid.).

The Rivav apparently is not bothered with the Rosh's question of why a person is permitted to rule
in a case in which he is personally involved. Rav Gustman (ibid.) explains that the Rosh and Rivav
argue about the extent of the applicability of the rule of "Avid Inish Dina l'Nafshei." The Rosh
understands that this rule merely gives a person the right to reclaim an object by force, but it does
not give him the status of Beis Din to rule on its ownership. The Rivav understands that the rule
of "Avid Inish Dina l'Nafshei" even allows a person to rule on the matter if he is a Talmid
Chacham. (Others understand that even a layman has the right to "issue a ruling" on the matter,
provided that he can uphold it later in court; ibid. 15:6.)

The RITVA explains that Rav Yosef refers to the principle of "Avid Inish Dina l'Nafshei." Why
does Rav Yosef mention a Talmid Chacham if this principle applies to every person? Rav Yosef's
intention is to teach that even a Talmid Chacham may carry out justice for himself. One might
have thought that it is below the dignity for a Talmid Chacham to take the law into his own hands;
a Talmid Chacham is expected to act more respectably. Rav Yosef teaches that a Talmid Chacham
may reclaim an object that was stolen from him and no Chilul Hash-m is involved in doing so.
This also appears to be the view of the OR ZARU'A cited by the HAGAHOS ASHIRI, who says
that this principle permits both a layman and a Talmid Chacham to reclaim objects that rightfully
belong to them, and both may even proclaim a Niduy to ensure the return of their objects.

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When the Gemara says that one may do justice for himself "when the matter is clear," it means
that one may declare the other person to be in Niduy only when he outright refuses to pay him, but
not when he merely procrastinates.

Rav Gustman zt'l (ibid. 15:5) cites the words of the BI'UR HA'GRA (CM 4) who also understands
that the Gemara means that a Talmid Chacham may seize what rightfully is his, but he suggests
that there is a difference between a Talmid Chacham and a layman. A Talmid Chacham may seize
the object even if he is unable to prove that the object belongs to him at the time he seizes it; he
may seize it as long as he finds evidence later that may be brought before the court. A layman who
seizes an object before he has valid evidence that the object belongs to him must return the object
even if he later finds evidence that the object is his.

HALACHAH: With regard to one who disgraces a Talmid Chacham, the SHULCHAN ARUCH
(YD 334:45) rules like the RA'AVAD that a Talmid may declare that person to be in Niduy, and
the Niduy takes effect as though Beis Din had declared it.
With regard to monetary matters, the SHULCHAN ARUCH (YD 334:46) rules like the OR
ZARU'A that anyone may place his disputant in Niduy when he outright refuses to pay. The
REMA, however, is stringent and rules like the ROSH that neither a layman nor a Talmid
Chacham may place his disputant in Niduy when he refuses to pay.

PERMISSION TO SIN
The Gemara quotes Rebbi Ila'i who says that if a person has an urge to sin and feels that his Yetzer
ha'Ra is going to overcome him, he should go to a place where nobody knows him, dress in black
clothing, wrap himself in black, and then do what his heart desires, in order not to desecrate Hash-
m's name in public.
The advice of Rebbi Ila'i is very difficult to understand. Regardless of how strong a person's urge
to sin is, there are never grounds to permit a person to surrender to his Yetzer ha'Ra. How can
Rebbi Ila'i give permission to a person to sin?

(a) RABEINU CHANANEL explains that Rebbi Ila'i does not actually permit a person to sin.
Rather, he refers to a case in which a person has an urge to drink an intoxicating beverage while
he listens to alluring songs in order to make himself merry in a way that will arouse his Yetzer
ha'Ra to entice him to sin. In such a situation, Rebbi Ila'i instructs the person to perform the merry-
making activities -- which are not sins themselves -- in private and while dressed in black, to
prevent Chilul Hash-m. Rabeinu Chananel adds that Rebbi Ila'i does not intend to permit the person
to do even these actions. Rather, Rebbi Ila'i means that when one goes to a foreign place and
dresses in black, his heart will be humbled and his desire to engage in merry-making activities will
be broken.
(b) RASHI in the name of RAV HAI GA'ON explains that Rebbi Ila'i indeed refers to actual sins
of immorality. However, he does not give permission to commit them. Rather, he means that if the
would-be sinner goes to a foreign place and dresses in black, he guarantees that the person will
become humbled and his urge to sin will depart.

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(c) In his other explanation, RASHI writes that Rebbi Ila'i's words are to be understood in their
literal sense. If a person feels compelled to sin, he should do so in private so that he will not
desecrate Hash-m's name in public. Sinning in private removes some degree of the severity of the
sin.

(d) The RIF writes that the Halachah does not follow Rebbi Ila'i. Rather, a person who has an urge
to sin is not permitted to go to a foreign place, dress in black, and fulfill his desires. Rather, he
should make every effort to break his urge to sin, because it is within every person's ability to
refrain from sinning. The Gemara in Berachos (33b) states that "ha'Kol b'Yedei Shamayim Chutz
m'Yir'as Shamayim" -- "everything is in the hands of Hash-m except for fear of Hash-m," which
is within the ability of a person to achieve.

The Rif implies that he understands Rebbi Ila'i's advice -- that a person who feels unable to refrain
from sinning should sin in private and not desecrate Hash-m's name in public -- to be in
disagreement with the fundamental principle of free choice. How, though, can the Rif ascribe such
a view to Rebbi Ila'i? The belief that mans has free choice is the fundamental principle of Torah
observance. RAV ELCHANAN WASSERMAN Hy'd raises this question and leaves it
unanswered (KOVETZ MA'AMARIM 7:8).

Apparently, the Rif means that there are times when a person's desire is so strong that he does not
have the willpower to overcome it. It is not within his threshold of Bechirah, free choice, to choose
not to sin in this particular way (see MICHTAV ME'ELIYAHU I:2:2, p. 113); his urge to sin is
like an addiction. However, he also does not know for certain that he will not be able to overcome
his urge, and therefore he must put forth every effort to overcome it.

DURATION OF A "NIDUY"
The Gemara relates that Reish Lakish was put in Niduy because he pronounced an undeserved
Niduy on someone else. He was told to go to the Nasi who would be able to annul his Niduy.
The Gemara implies that Reish Lakish did not need to wait thirty days before his Niduy could be
annulled, but that he could have his Niduy removed right away.

However, the Gemara earlier (16a) quotes Abaye who rules that when a person is put in Niduy for
a non-monetary matter, the Niduy must last for at least thirty days. Moreover, the Gemara there
cites a Beraisa which says that a Niduy does not last less than thirty days. How, then, could Reish
Lakish have his Niduy annulled immediately without waiting for thirty days to pass?

(a) The RIF explains that the Halachah does not follow the ruling of Abaye. A Niduy, even one
pronounced for a monetary matter, may be removed immediately.

How does the Rif understand the Beraisa which says that a Niduy must last for thirty days? If the
Beraisa refers to a person who went to Beis Din to have his Niduy removed, then why does he
need to wait thirty days? If the Beraisa refers to a person who did not go to Beis Din to have his
Niduy removed, then even after thirty days have passed he remains in Niduy (like the person whom
Rav Yehudah put in Niduy and who died while in Niduy).

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The RA'AVAD (cited by the Rosh 3:7) explains that the Beraisa refers to a person who goes to
Beis Din to remove his Niduy. However, in order to remove the Niduy before thirty days have
passed, he must first appease the person whom he offended. If he does not appease the victim of
his offense, he nevertheless may go to Beis Din after thirty days have passed and have the Niduy
removed. Although he did not appease his victim, his Niduy may be removed because he has
suffered enough (thirty days) for his sin. (This is similar to a person who receives Malkus who is
not punished with more than the prescribed amount of lashes, even though he did not appease his
victim.)

(b) The RITVA explains that when the Gemara earlier says that one must wait thirty days, it means
that the Niduy is automatically removed after thirty days. If, however, the person goes to Beis Din
earlier to request that his Niduy be removed, it can be removed within thirty days. That is why
Reish Lakish was able to remove his Niduy before thirty days had passed.

(According to this explanation, in the case of the person whom Rav Yehudah put in Niduy,
apparently Rav Yehudah specified that the Niduy would last longer so that it is not lifted
automatically after thirty days.)

The Ban of the Maid

Steinzaltz (OBM) writes:4

Aside from Hol HaMoed and aveilut (mourning), this perek discusses situationsof
nidduy – bans – a type of excommunication.

Although we may have thought that formal bans could only be meted out by a formal court
system, Rabbi Shmuel bar Nahmani relates a story about one of the maids who worked in
the home of Rabbi Yehuda HaNasi whose ban was accepted by the community of scholars.
Once, this particular maid saw a person who was beating his adult child. Her immediate –
and vocal – reaction was that this person should be banned, since he was putting a
“stumbling block” before his son (see Vayikra 19:14), who would likely try to defend
himself by hitting back (see Shmot 21:15).

The ban was accepted, and according to the Gemara, remained in force for three years.

Although her reasoning was certainly correct, why did it take the Sages three years to undo
the ban that Rebbi’s maid had declared?

Rabbeinu Yehonatan suggests that the crucial question that needs to be asked when
discussing the removal of a ban is whether the individual recognizes the inappropriateness

4 https://steinsaltz.org/daf/moed17/

15
 of his actions and accepts that such behavior should not be repeated. Until such time as that
point is clarified, the person will remain excommunicated.

The Rosh says that in order for a ban to be lifted we need those people who convene to
remove it to be greater than the person who declared it in the first place.

Rebbi’s maid was known to be a woman of unique intelligence and was truly God-fearing,
to the extent that it was difficult to find someone with her qualities who could lift the ban.
It should be noted that we find “the maid of Rabbi Yehuda HaNasi” mentioned in other
contexts in the Gemara.

In one case she is quoted offering interpretations to difficult words whose meaning escaped
the Sages, explaining that these were words that she was familiar with from listening to the
conversation in the home of her master.

The Gemara relates an incident with Reish Lakish regarding when it is justified to place someone
in a state of banishment (shamta).5 Reish Lakish was guarding an orchard, when an intruder
approached and began to take some figs. Reish Lakish raised his voice to and warned the thief to
stop, but he ignored Reish Lakish and continued his illicit act. Upon being confronted with this
impudence, Reish Lakish declared, “I hereby place you in a state of being banned!” The thief was
shocked, and he retorted, “On the contrary, I declare that you be banned! If I owe money for my
misdeeds, does that justify that you place me in banishment?”

Subsequently, Reish Lakish came to the Beis Midrash to discuss the matter, and the scholars
determined that the intruder was indeed correct in his assertion that he was not deserving of being
banned. Furthermore, the response of the thief was correct that Reish Lakish was deserving of
himself being placed in banishment for issuing an unjust threat upon the thief. Reish Lakish asked
the scholars what he could now do to remedy the situation, and they told him that he would have
to go to the Nasi and request a release from the ban which was placed upon him.

Nimukei Yosef notes that from this Gemara we learn that if a person is unjustified in placing a ban
upon someone else, the one who makes this wrong proclamation is himself deserving of being
banned. Rambam (Hilchos Talmud Torah, Chapter 6) and the commentaries discuss whether the
Beis Din actually administers this ban, or whether it is the prerogative of the one who was wronged
to declare the ban, if he so wishes, as we find in the episode in our Gemara.

Another lesson from this Gemara is that it is not necessary for the one who declares the ban to be
the one who releases it. In our story, the thief placed Reish Lakish in banishment, but the scholars

5 https://www.dafdigest.org/masechtos/MoedKatan%20017.pdf

16
sent Reish Lakish to the Nasi to be released from his condition. Nevertheless, it is necessary that
the one who issues the release be of a greater stature than the one who originally proclaimed the
ban. In our case, because the precise stature of the thief was not known, the scholars wisely sent
Reish Lakish to the Nasi, as this assured that the release was going to be issued by someone who
was greater than the thief (See Rosh, citing Ra’aved, 3:6)

The maidservant of Rebbi Yehuda HaNasi saw a man beating his mature1 son. She said: This
man should be banned because he transgresses the prohibition of placing a stumbling block
before the blind. For indeed we are taught in a Beraisa: You shall not place a stumbling block
before the blind, this verse refers to a man who hits his mature son.

The forbiddance of placing a stumbling block before the blind is explained to include situations
where one provides opportunity for another to sin. Therefore, when one strikes an older child who
may retaliate by hitting his parent, one has effectively placed the child in a situation in which he
may be enticed to sin by hitting his parent.

Rav Malachai HaCohen in his seminal work Yad Malachai (2) records a discussion about whether
the agitator transgresses the prohibition immediately upon fomenting potential transgression, or
he becomes liable only upon the victim’s actually sinning. He wishes to resolve this question from
our passage.

The maidservant of Rebbi Yehuda HaNasi, upon seeing the father beating his older son,
immediately wanted to ban the parent since he had transgressed the forbiddance of placing a
stumbling block before the child. From the fact that Rebbe's maidservant immediately sought to
place a ban upon this father, even before waiting to see if, in fact, the son would actually strike
back, we may derive that the prohibition is transgressed immediately and is not contingent upon
the victim’s actually sinning.

Indeed, some authorities (3) accept this as a proof, and conclude that as soon as an instigator
provides another person with the ability to sin, he has already in violation of this transgression,
regardless of whether the next person actually commits the sin which is now availabe. However,
other authorities4 reject this proof explaining that the Biblical prohibition of providing opportunity
for sin is only transgressed when the victim in fact contravenes the prohibition.

Our episode, however, may be only an illustration of a Rabbinic injunction which is in effect
immediately, whether or not the next person sins.

17
A certain Rav once came to the Maharsham of Barzan, zt”l, and boasted of his great
accomplishments in secular studies and foreign languages.

During that time, anyone who studied such subjects was suspected of being part of the Haskalah
movement, especially if he didn’t learn this as an adjunct but made it a prime focus of his time and
energy, as this visitor clearly had.

The Maharsham said, “In Moed Katan 17a we find that if a Rav is like an angel of Hashem, then
one should learn from him, but if not one should not. The question on this is well known: Who has
met an angel that he can discern if his prospective Rav is like one or not?

The answer is simple. It says that the angels do not even understand Aramaic, only lashon
hakodesh. Apparently, they don’t study foreign languages! If one does, than it is very likely that
he is in the category of one who has wisdom but not Torah. One should certainly not learn from
such a Rav!”

Rav Mordechai of Rachamstrivka, zt”l, spent his later years in Yerushalayim. On the ship that
carried him over to Eretz Yisrael was a certain well known darshan who was always giving
unsolicited talks before the other passengers. The Rachmastrivka Rebbe, on the other hand, hardly
said a word, which was the general way of the various offshoots of the Chassidus of Chernobyl.

When the darshan asked him about his taciturnity, the Rebbe quoted the above Gemara and
explained, “ ‫— רה יבקשו מפיהו‬if people plead with him, he shares his Torah. On the other hand, a
Rav who is not like an angel bombards his audience with unsolicited words of Torah!”

The Divrei Yechezkel, zt”l, explains that an angel doesn’t think of himself at all, only of Hashem.
“This is the type of Rav who you should learn from, one who is not self-absorbed in the least!”

The Pardes Menachem, zt”l, explains further, “It says that the angel Michael is made of snow and
the angel Gavriel is made of fire, yet they stand next to each other and do not damage one another.
This is the lesson from our Gemara.

If the Rav is like an angel, if he gets along peacefully with others, then you should learn from
him!”

18
 Rabbinic Cancel Culture

R. Sari Laufer writes:1

Can we separate an artist from their art? A scholar from their scholarship? Can we appreciate a
wonderful book written by a terrible person? These are some of the deeply painful questions we ask
today, especially in the age of #MeToo and cancel culture, and the seemingly never-ending
revelations of terrible, dangerous, predatory behavior by many esteemed artists, teachers and spiritual
leaders.

In truth, these questions are perennial, and the rabbis struggled with the same dilemma. For them, the
question was: Can we separate Torah from the rabbi who shares it? Take, for example, this story:

There was a certain Torah scholar who gained a bad reputation. Rav Yehuda said: What should
be done? To excommunicate him is not an option — the sages need him. Not to excommunicate
him is also not an option, as the name of Heaven would be desecrated.

The rabbis, it would seem, are in a bind. They would like to excommunicate this Torah scholar who
has purportedly behaved badly, both to distance themselves from him and to protect God’s reputation.
On the other hand, his Torah — his contribution to the discourse and tradition of halakhah — is
recognized to be of vital importance. If they lose him, they lose that as well. Rabbi bar bar Hana offers
a teaching from Rabbi Yohanan to help Rav Yehuda decide:

What is the meaning of that which is written: “For the priest’s lips should keep knowledge, and
they should seek Torah at his mouth; for he is a messenger (malakh) of the Lord of hosts”(Malachi
2:7)? This verse teaches: If the teacher is similar to an angel (malakh) of the Lord, then seek Torah
from his mouth, but if he is not, then do not seek Torah from his mouth.

Using a play on words — malakh means both angel and messenger — this teaching comes to explain
the central dilemma of this discussion. Torah is not just about the words that are spoken by its
teachers, but also about the way those messengers behave in their everyday lives.

Recall, also, that this scholar's bad behavior was only rumored, and not proven. Despite the lack of
proof, Rav Yehuda is ready to excommunicate him, presumably for the sake of preserving the
reputation of Torah and its scholars. That can make us profoundly uncomfortable — the idea that a
person is exiled from the community without proof of guilt.

1
Mytalmudiclearning.com
19
But likely for Rav Yehuda the calculation is that the greater good — in this case Torah — is more
important. He excommunicates the scholar.

Sometime later, as Rav Yehuda is dying, a number of his fellow rabbis, including the one he
excommunicated, come to visit him. In that moment, reflecting on his life, Rabbi Yehuda expresses
no regret about his decision. In fact, he laughs. The excommunicated scholar responds:

Was it not enough that you excommunicated me, but now you even laugh at me?

Rav Yehuda said to him: I was not laughing at you; rather, I am happy as I go to that other world
that I did not flatter even a great man like you.

It’s a startling image — that on his own death bed, Rav Yehuda laughs in the face of the man whose
life he upended, perhaps even ruined. Given that he was initially unsure of what to do, Rabbi Yehuda’s
laughter seems, in this moment, to be his confirmation, to himself, that he made the right decision.

This laughter, then, becomes the lesson: We cannot separate the scholar from their Torah. Rather, we
should only learn Torah from those who live Torah, only seek to learn values and morals and
communal behaviors from those who practice what they preach. The rabbis do not take
excommunication lightly, and we know that any loss of Torah is, for them, a grave loss. Rav Yehuda,
by example, reminds us that we must take seriously not only the teachings and words that are spoken,
but the teacher as well; for the rabbis, we must do as we say.

Rabbi Johnny Solomon writes:2

Our daf (Moed Katan 17a, and also repeated in Chagigah 15b) contains an oft-cited yet nevertheless
cryptic teaching about the qualities of the ideal Torah teacher.

Quoting from Malachi 2:7, Rav Yochanan asks: ‘What is the meaning of the verse ‫ִכּי ִשְׂפֵתי ֹכֵהן ִיְשְׁמרוּ‬
‫ ה' ְצָבאוֹת הוּא‬q‫“ – ַדַﬠת ְותוֹ ָרה ְיַבְקשׁוּ ִמִפּיהוּ ִכּי ַמְלַא‬For a priests lips should safeguard knowledge, and
the people should seek teaching from his mouth, for he is an angel of the Lord of Hosts”?’. In
response, he answers: ‘if a teacher resembles an angel of the Lord of Hosts then seek Torah from
them, but if not, then do not seek Torah from them’.

Over the years, given the fact that I am a Jewish educator, I have collated a range of explanations of
this teaching. Here are three different interpretations which I hope you enjoy!

2
www.rabbijohnnysolomon.com
20
Basing himself on the Gemara and Rambam, the Lubavitcher Rebbe3 explains that the ideal Torah
teacher should be someone who is able to overlook personal snubs, envy, and rivalry, and instead be
someone who publicly and privately exemplifies the ideal qualities of a Jew through acting with
modesty, through showing compassion, and though performing acts of kindness.

According to Rav Ezra Attieh,4 the comparison between Torah teachers and angels relates to the idea
that angels are referred to as ‘stationary beings’ (see Zechariah 3:7) as compared to righteous people
who are described as ‘walkers’ (see Mishlei 20:7). While some people may teach Torah for their own
prestige and in order for them to gain honour, the true Torah teacher acts like an angel because, rather
than spending their time on their own learning, they use their time preparing their classes and
answering questions they receive from their students. In so doing they choose to remain stationary
for the sake of their students, and consequently, they resemble an angel of the Lord of Hosts.

Lastly, Rav Aharon Soloveitchik5 explains that for a teacher to resemble an angel of the Lord of
Hosts, they need i) Consistency, ii) a sense of Divine mission and iii) an abundance of love. This
means that a teacher should live a life that is consistent with what they teach; they should consider
their involvement in Torah teaching not as a profession but rather as a Divine mission, and they should
convey - through their words and actions - a profound love of Am Yisrael.

A Maidservant With A Boy In A Larder by Pietro Ricchi

The Power of the Sages

3
https://www.youtube.com/watch?v=JVFXZK6LDb8
4
Leader of the Generation - The Exalted Life and Times of Maran Rosh Yeshivat Porat Yosef The Great Gaon Rabbi Ezra Attieh
zt’l, pgs. 378-9 https://books.google.com/books/about/Leader_of_the_Generation.html?id=IA1XMwEACAAJ
5
Building Jewish Ethical Character pp. 11-18
21
Mark Kerzner writes:6

A particular Torah scholar was reported to have inappropriate relationships with young women. Rav
Yehudah discussed with his colleagues, "What are we to do? Excommunicate him? - But he is a
teacher of many students. Not to excommunicate? Covering up on him is a desecration of God's
name!" Rabbah told him in the name of Rabbi Yochanan, "Teacher should be like an angel, and if not
– do not study from him." Based on that, they excommunicated him.

A while later, Rav Yehudah was sick, and the Sages visited him. When Rav Yehudah saw the
excommunicated scholar with them, he laughed. The scholar said, "Not only you excommunicated
me, but you also taunt me!" Rav Yehudah replied, "I am not laughing at you, but at the thought that
when I die, I will be congratulated on not flattering even such a powerful and connected man like
you."

After Rav Yehudah's death, the man came to rescind the excommunication. However, Rav Shmuel
bar Nachmani, who for years has not visited the assembly, happened to come on this day and said,
"How can we do it, seeing that Rav Yehudah did not make peace with him? Why, even a maidservant
of Rabbi Yehudah the Prince – when she excommunicated someone, the Sages observed this for three
years!"

The excommunicated man left the study hall, and a bee bit him on his male organ, and he died. The
burial cave of the pious did not accept him, but that of the judges – did. Why did it? – Because he
would change his dress and go to faraway places when transgressing so that people would not see
him misbehave openly.

And what was the story of Rabbi Yehudah's maidservant? – When she saw a man beating his grown-
up son, she excommunicated him.

By provoking his son to retaliate and violate the mitzvah of honoring the father, he was "putting a
stumbling block in front of a blind man."

6
https://talmudilluminated.com/moed_katan/moed_katan17.html
22
 How to Sin

Rabbi Jay Kelman writes:6

The primary way we can tell which commandments are more important than others is by
the punishment recorded in the Torah for various offences[1]. Thus, murder and adultery
carry the death penalty; whereas eating on Yom Kippur "only" subjugates oneto
karet, heavenly excision.

The Torah prescribes that a clandestine thief, a ganav, must--in addition to retuning the
amount stolen--pay a 100% fine, whereas a gazlan, one who brazenly steals, need only
return the amount stolen with no fine assessed--making a ganav a more serious criminal
than a gazlan[2].

This seems counterintuitive, as holding up someone at gunpoint would seem to be much

worse than sneaking into their home and taking some jewelry. In a famous teaching, our
Sages explained as follows: For all the evil of walking over to someone and demanding
money, at least such a person is consistent. He fears neither G-d nor man. A ganav, on the
other hand while he too has no fear of G-d is afraid of man (Bava Kama 79b). To display
greater fear of man than G-d is criminal. To put it in modern parlance, it's better to be
stabbed in the heart than in the back. The white collar criminal deserves greater punishment
than the mugger.

Yet this is not the complete picture. "It was taught [in a Braita] Rav Elyai said: If a person
sees that his [evil] inclination is becoming too powerful, he shall go to a place where people
do not recognize him, and he shall dress in black and wrap himself in black, do what his

6 https://torahinmotion.org/discussions-and-blogs/moed-katan-17-how-to-sin

23
heart desires, and not desecrate G-d's name in public" (Moed Katan 17a). Chilul Hashem,
desecrating the name of G-d, is the one sin for which repentance is not possible in this
world. Only upon death is atonement possible (Yoma 86a).

While it is to be hoped that changing clothes and travelling to another city will help control
one's evil inclination enabling them to resist the urge to sin, our Sages understood that such
was not always possible. Sometimes, people need to sin; and if such is the case, our Sages
instruct us to do so in private and in a locale where we are unknown and thus, even if
discovered, one's sin will have less impact on others. While modern communications may
make anonymity highly unlikely, people must learn at times to turn a blind eye to those
sinning in private.

Yet one can only turn a blind eye to sins between man and G-d. When harm is done to
another human being, whether in public or private, one must fight for justice--even if,
inevitably, a Chilul Hashem will be caused. The desecration of G-d's name caused by
ignoring the injustice to another is much greater.

This concept was not invented by our Sages, and finds precedence in the Torah itself. Next
week we will read about the eshet yefat toar, a beautiful ("enemy") woman whom one
meets and is attracted to in wartime. The Torah could easily have instructed that we
overcome and suppress our inclination to sin. However, knowing the superhuman strength
required for this--especially in wartime--"the Torah spoke to our evil inclination"
(Kiddushin 21b), and set up a series of procedures designed to help usovercome our desire.
But if such do not work, the Torah allows one to have relations withsuch a woman. Rav
Elayai took this concept one step further, "allowing" one to sin in caseseven when the Torah
says not to--in order to prevent even worse sinning.

Our Sages strove to find a proper balance between the ideal world and the world of reality.
We may abhor sin, but sometimes we must--after all else has failed--allow one to sin, but
instruct him to do so in the best possible way - in private. If one only allows for the ideal,
those - and that is all of us - who cannot attain such might sin in a less desirable way.

This is not hypocrisy, but a method to limit the desecration of G-d's name. While we
humans often look down on sinners, G-d is a kind, merciful, and understanding G-d, and
is our "G-d before we sin and after we sin". And when one does sin, one can begin the
process of teshuva--a process that, for sins between man and G-d, should remain that way.

This is in contradistinction to sins between man and man, where we must publicize that our
actions were wrong.

[1] The prescription of punishments actually tells us more about the severity of the wrongdoing than it serves as a
guideline to punishment. It was rare indeed that these punishments were actually carried out. And if a need arose to
punish a sinner, the court had the right and obligation to give punishment beyond what the Torah "allows" (Sanhedrin
46b). However, see Maharsha Sanhedrin 64b, who explains that at times, there is no punishment given because the sin is
so great, punishment cannot atone.
[2] Whereas Western justice systems often focus on the perpetrator of crime, Jewish jurisprudence insists that any loss
be restored to the victim.

24
Rav Moshe Taragin writes:7

Parshiyot Balak and Pinchas describe the heroism of Pinchas. Though the Torah portrays
his feats with admiration, the Halakha has a less than favorable view of vigilantism. An interesting
exception, however, can be found in the gemara in Bava Kama (27b). The gemara describes an
incident whereby two people had a sharing arrangement for a well of water. They drew water from
the well on rotating days. Once, one of the partners drew water on a day which wasn't his and did
not heed the incessant warnings and protests of his partner. The victim took a hammer and
assaulted his partner. The initial position of the gemara is that such behavior is, in certain
situations, justifiable based upon the principle "Avid inish dina le-nafshei" - a person may execute
justice for himself. The exact conditions for this behavior and the nature of this rule will be
explored within this article.

At first glance, we might perceive this measure as EXTRA-LEGAL. In certain unique

situations in which the delay of prosecuting the case through legal means will be harmful, a person
can effectively take the law into his own hands. When he does so, he is in fact circumventing the
law. The gemara effectively legalizes an 'assault' which under normal conditions is prohibited. By
no means are his actions given the credibility or authority of law and justice. Rather, Halakha
allows for limited vigilantism (at least in financial areas) in strictly guarded circumstances.

7 https://etzion.org.il/en/talmud/studies-gemara/talmudic-methodology/avid-inish-dina-le-nafshei-executing-justice-independent

25
 The phrasing of the gemara, however, might suggest an alternate position. The gemara
(28a) in describing a woman defending her husband who is being beaten justifies her consequent
aggression by claiming "since she has no other recourse to save her husband her hand becomes the
EXTENSION OF BEIT DIN." This presentation implies a more integrated relationship between
standard due process and avid inish. It suggests that in these unique circumstances the victim has
the same power as the court's officer in executing justice (what we might loosely define as a
citizen's arrest).

Similar impressions may be gathered from the Rambam who groups the laws of avid inish
in Hilkhot Sanhedrin rather than in Hilkhot Nizkei Mammon. This classification may very well
indicate that the Rambam understood the process of avid inish to flow from the court's own
jurisdiction.

A third expression of this theory - that the vigilante can be considered as the court's agent
- can be located in the comments of the Nimukei Yosef (page 12b in the pagination of the Rif). He
questions the extent to which an actual court officer can beat a recalcitrant litigant to encourage
him to appear in court. He proves from our episode (where the victim of the water-theft hit his
partner 100 times) that a court agent can similarly dispense unlimited beating. Had the Nimukei
Yosef viewed avid inish as extra-legal recourse, he might not have been so quick to apply the
standards of that action to an officer acting as the court's messenger. Evidently, he viewed avid
inish as executing the court's justice and saw this as a viable model for determining the laws of a
classic court-appointed agent.

SUMMARY:

After initially suggesting that avid inish constitutes taking the law into your own hands, we
noticed three elements which might suggest otherwise. The syntax of the gemara, classification
scheme of the Rambam, and the comparison of the Nimukei Yosef all pointed in the same
direction: avid inish is an opportunity for a victim, under certain circumstances, to deputize himself
as a court agent.

This essential question might influence several halakhic issues. For example, can avid inish
be executed by an individual who could not possibly be seen as a court agent? The Maharik
(shoresh 161) claims that avid inish cannot be facilitated through a Gentile. Had avid been a license
for extra-legal self-defense in extreme circumstances, soliciting the assistance of a Gentilewould
seem logical. Evidently, the Maharik viewed avid inish as acting through beit din - an identity
which is absurd in the case of a Gentile.

How confident in his legal position must one be to take the law into his own hands? It
would seem fairly obvious that the vigilante must act according to halakha (as the victimized
water-partner did). It would be ridiculous to allow complete anarchy whereby each person may
use force to apply any law they interpret to be accurate. Rashi claims such when he writes (27b
s.v. Lo) that the dissenting opinion (which outright rejects avid inish) would not even allow
PROPER justice to be dispensed by the vigilante. We can infer from Rashi that the lenient position

26
which endorses avid inish did so only in the event of halakhically valid law being executed through
a vigilante. Such a limitation would seem obvious regardless of how one understands avid inish.

The more uncertain issue, though, would revolve around law which, though authentic,
would not stand up in a court of law. The Rosh raises this demand: to execute your own justice, it
is not sufficient to be right; you must also have the evidence to triumph in a real court of law. Only
in such cases would avid inish allow you to 'accelerate' the process. Evidently, the Rosh believed
that avid inish entails extending beit din's reach. This association is only meaningful if beit din
would have (in all probability) reached a similar verdict. It is interesting to note that the gemara in
Mo'ed Katan (17a) apparently establishes a more lenient set of guidelines for a talmid chakham
implementing justice independent of beit din.

The gemara claims that when he is certain of his righteousness he may take action (ostensibly even
if he would not have been able to prove his point in court). The operative question becomes
whether this gemara represents classic avid inish – with slightly more lenient guidelines or must it
be viewed as an isolated and logically independent rule. For example, the Shita Mekubetzet (on
Bava Kama explaining the gemara in Mo'ed Katan) claims that this latitude granted to the talmid
chakham/victim is a unique rule intended to protect kavod ha-Torah. As such, it would not
influence our impressions of avid inish.

A similar issue would surround the implementation of avid inish regarding laws which beit
din itself could not enforce. The Rosh demanded that avid inish 'shadow' standard judicial process
(in terms of the strength of evidence which might prompt such enforcement). A parallel demand
might be lodged regarding the types of halakhot which allow avid inish. The gemara in Bava Kama
(88a) informs us that in our era, since we lack judges whose semikha is in direct lineage from
Moshe (semukhin) we cannot litigate knasot (fines which are penal rather than compensatory in
nature – for example the double payment of kefel which a thief pays).

Would avid inish apply in this circumstance? Would a victim be permitted to seize not just the
worth of his stolen item but also double its worth? Ironically, the Rosh allows avid inish to operate
even for knasot, although beit din itself is powerless to adjudicate these fines. What makes his
position startling is that, at the same time, he allows avid inish only if the evidence was irrefutable
and would have held up in court. Does he view avid inish as extending beit din's reach or as
executing lone justice?

Thus far, we have analyzed the position which grants greatest license in the area of avid
inish. The gemara also presents the stricter opinion which limits avid inish to a situation of
irreparable loss. If the aggressive partner were drawing water, waiting for a verdict to come would
have resulted in the loss of that day's water. According to this position, in typical cases, however,
due process must be pursued. How might we define avid inish if it is limited only to cases of
irrecoverable loss? This stricter view perhaps perceives avid as a departure from legal process and
an extreme form of self-defense, reserved for abnormal circumstances. Hence, we might claim that
the more lenient position argued precisely about that point. The lenient position viewed avidinish
as ALTERNATIVE justice and hence broadened its sweep even to include cases where permanent
loss was not being suffered.

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Methodological Points:

1. The language employed by the gemara to describe a halakha is often very telling about the
nature of this halakha. By the gemara referring to a woman protecting her husband as "the arm of
the court," it might have been indicating the essence of this halakha.

2. The classification scheme of the Rambam might also reflect the halakha. By inserting these
laws into Hilkhot Sanhedrin rather than Hilkhot Nizkei Mammon, the Rambam might have been
defining avid inish as a form of justice. Note, however, the gemara's discussion of avid inish in
Bava Kama and not Sanhedrin.

3. When a Rishon infers from halakha 'x' to seemingly unrelated halakha 'y,' we must re-adjust
our perspective to understand the similarity between the two. When the Nimukei Yosef induces
the laws of a court officer from avid inish, we are obviously witnessing a view of avid inish as
justice.

4) In many cases of alternative legal process, we must inspect its relation to standard pesak. The
same question arises with regard to tefisa (grabbing money which you feel you are owed AFTER
beit din has reached a dead-end), peshara (compromise) and kana'im pog'in bo (Pinchas killing
Zimri).

Beit Din Basics

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Rabbi Chaim Jachter writes:8

Many otherwise knowledgeable Jews find the contemporary workings of financial litigation in
Beit Din to be obscure and even foreign. In this series we will highlight some basic points about
Beit Din that every Jew should find helpful. In an effort to enhance comprehension, we will present
a fictional case and explain how a Beit Din could resolve such a situation. In order to make matters
simpler, we will forego our usual copious citations to the sources of the issues we discuss. Many
sources for these issues appear in the second volume of my Gray Matter where commercial
litigation in Beit Din is discussed at great length.

We will begin our discussion by presenting seven introductory concepts that are essential for
understanding how Batei Din currently function.

Batei Din, Civil Courts and Attorneys

Halacha forbids us to submit financial disputes to a Nochri court for adjudication. Our financial
disputes with our fellow Jews should be resolved “within the family” and according to the rules of
our tradition. We should emphasize that this is entirely in harmony with civil law, as civil courts
are most pleased with alternative dispute resolution. Civil courts are overburdened and the
government is delighted to be relieved of the burden of resolving our disputes. Indeed, civil courts
will most often enforce the decisions of Batei Din. It is sound civil public policy to encourage such
arbitration. However, the civil courts will enforce a Beit Din ruling only if the Beit Din adhered to
the civil rules for arbitration. For example, a civil court will not enforce a Beit Din ruling if the
Beit Din did not permit each litigant to be represented by a licensed attorney of their choice. For
this and other reasons, litigants are often represented in Beit Din by attorneys, even though the
Mishnah and Gemara hardly ever describe the presence of lawyers in a Beit Din.

It is very much in the interest of Halacha for Batei Din to hew closely to the civil procedures for
arbitration since civil courts are currently the only mechanism for enforcement of Piskei Din (Beit
Din rulings). The Torah speaks of the Mitzvah to appoint “Shofetim V’Shoterim”, judges and
policemen to enforce the rulings of the Dayyanim (rabbinic judges). In a Torah society, the Jewish
government appoints Shoterim to enforce the rulings of the Beit Din. In American society, the civil
courts function as our Shoterim. Those who reside in the United States are most fortunate that the
courts are strongly inclined to enforce properly adjudicated Batei Din arbitrations. This is not the
case in other jurisdictions.

The Role of Civil Law in Beit Din –

Three Portals One might be rightfully puzzled at the title of this section – after all, a Beit Din is
supposed to rule in accordance with Halacha. What role could civil law have in Beit Din? There
are, however, three portals through which Halacha potentially incorporates civil law. The first is

8 https://images.shulcloud.com/202/uploads/Divrei_Torah/Beit-Din-101.pdf

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that in regard to financial matters, Dina D’malchuta Dina, Halacha obligates us to honor the laws
of the jurisdiction in which we reside. However, there is considerable difference of opinion in
regard to the scope of the applicability of this rule. Moreover, Posekim are most reluctant to
eviscerate Halacha by too liberal an application of Dina D’malchuta Dina.

Many Dayyanim are more comfortable with a different portal, Minhag HaMedinah – the common
commercial practice of a particular locale. The Mishnah and Gemara quite often apply Minhag
HaMedinah even when it is not identical to Halachic practice. Work hours are a classic example
(Halacha expects employees to work from dawn to dusk). The common commercial practice of
fewer working hours overrides the Halacha. It is important to note that Dina D’malchuta Dina
often determines and creates the Minhag Hamedinah.

In fact, the rules, and procedures of the Beth Din of America (available at www.bethdin.org) state
that its Dayyanim will incorporate common commercial practice in their rulings “to the fullest
extent permitted by Jewish Law”. A contemporary example is building codes. A Beit Din will not,
for the most part, adjudicate a dispute between a homeowner and a building contractor based on
the standards for buildings articulated by the Gemara. Instead compliance with contemporary
building codes is the basis, for the most part, of the decision. Indeed, the parties to a building
agreement expect contemporary building codes to serve as the benchmark for proper fulfillment
of their contract. Thus, civil building codes create a Minhag Hamedinah and are incorporated into
the Halacha.

A more controversial portal is the contractual agreement for a Beit Din to adjudicate disputes in
accordance with civil law of a specific jurisdiction as of the day of the contract. The Beth Din of
America will, generally speaking, honor such agreements. They reason that Halacha follows Rabi
Yehuda who permits structuring financial affairs in any manner provided that it is honest,
consensual and does not violate ritual law (such as the prohibition of Ribbit, charging interest).

Other Batei Din, however, view such agreements as a violation of the prohibition to adjudicate in
civil court. They reason that Halacha forbids submitting both to the authority of a Nochri court and
to Nochri law. The Beth Din of America, however, argues that one submits to the authority of the
civil law only if the contract calls for the Beit Din to rule in accordance with the civil law as of the
date of the adjudication of the future dispute.

Indeed, the prenuptial agreement promoted by the Rabbinical Council of America and the Beth
Din of America (and approved by Rav Ovaida Yosef) offers the option for couples to submit to
the jurisdiction of the Beth Din of America for adjudication of any financial dispute emerging from
divorce, based on civil equitable distribution laws or community property laws. Of course, the
agreement calls for the Beit Din to apply these civil laws as they apply on the day of the signing
of the prenuptial agreement.

Considering that Halacha incorporates some aspects of civil law, it is often desirable to select at
least one Dayyan who is expert in the civil law of the specific matter that is being adjudicated by
the Beit Din. Some of the Dayyanim who serve on the Beth Din of America have a law degree.

Shtar Beirurin/Binding Arbitration Agreement

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Batei Din require litigants to sign a Shtar Beirurin/binding arbitration agreement before they will
adjudicate a dispute. Without such consent, the Beit Din might not have Halachic jurisdiction over
the parties and the parties might choose to ignore the Beit Din’s rulings. Moreover, a civil court
will not enforce a ruling unless the parties signed a proper binding arbitration agreement. Batei
Din do not enjoy authority in a country that separates state and religion unless the parties
contractually agree to submit to the jurisdiction of a specific Beit Din to settle a specific dispute.

Indeed, refusal to sign a Shtar Beirurin is regarded by Batei Din as tantamount to refusal to
adjudicate the dispute in Beit Din, and one who acts thusly is held in contempt of rabbinic court
(“Mesareiv L’Din”). Refusal to sign a Shtar Beirurin/binding arbitration agreement is a strong
indication that the party does not intend to respect and honor the Beit Din ruling if it is not rule in
his favor.

Since the Shtar Beirurin/binding arbitration agreement is both a Halachic and civil necessity, it
must conform both to Halacha and to civil law. The Beth Din of America Shtar Beirurin is in
English, for example. The aforementioned RCA/BDA prenuptial agreement is written in English
and is independent of the Ketubah and the Tenaim.

The composers of the RCA/BDA prenuptial considered the dissenting opinion in a classic New
York civil court five to four ruling in “Avitzur vs. Avitzur”, upholding the civil enforceability of
the Conservative movement’s prenuptial agreement, which adds a binding arbitration clause to
their “Beit Din” written in Aramaic and incporated to the traditional Ketubah. The dissent argued
that a civil court is not permitted to enforce a “liturgical document”. In addition to avoiding the
Conservative prenuptial’s Halachic flaws, the Orthodox prenuptial steers clear of this critique
thereby enhancing its likelihood of enforceability in civil court.

One Dayyan or Three Dayanim

The first Mishnah of Masechet Sanhedrin teaches that a Beit Din of three is required for
adjudication of commercial disputes. However, Halacha permits parties to choose one Dayan to
judge their dispute. As we mentioned earlier, Halacha grants us great flexibility in regard to
financial matters. The advantages to choosing one judge is that the matter can be resolved more
quickly since time is not needed for the judges to agree upon a ruling. Moreover, the expense of
paying more than one Dayyan is avoided.

The advantage of a Beit Din of three Dayanim is that there will be much more grappling with the
issues involved. Most likely, a better decision will be reached since more perspectives are involved
at arriving at a decision. Pirkei Avot specifically advises rabbis to refrain from resolving monetary
disputes alone without the benefit of two additional Dayyanim.

It is especially recommended to use a Beit Din of three Dayanim if the matter is under serious
dispute and emotions are running high. In such cases, creating/restoring peaceful relationships is
a major goal of a Din Torah (Beit Din litigation). There is much greater chance of achieving
Shalom there three Dayyanim decide a case. The losing party is much more likely to reconcile

31
himself to a decision of three experts rather than only one. A rational individual who is convinced
of his stance in a dispute will relent when three respected figures believe otherwise.

Beit Din Kavua vs. Zabla

Halacha offers two basic options of choosing a Beit Din to adjudicate a dispute. One is a sitting
Beit Din (Beit Din Kavua) and the other is a Zabla Beit Din in which each litigant chooses a Dayan
and then the two Dayanim choose a third Dayan. There are advantages and disadvantages to each
type of Beit Din. Some prefer a Zabla because the parties exercise some control over the choice of
Dayanim. Customarily, the two Dayyanim chosen by the parties ascertain that the third Dayan
(Shalish) is acceptable to both litigants.

A disadvantage of this type of Beit Din is that sometimes the Dayanim chosen are not compatible
and do not work well together. While each Dayan may be excellent in his own right, the
combination might not work well. Another disadvantage is that a Zabla Beit Din will, generally
speaking, will be more expensive since the Dayyanim serve not only as the judges but also
administrators of the case. Since the Dayyanim must invest more time, their fees are higher. Visit
www.bethdin.org for a list of fees charged by the Beth Din of America, a Beit Din Kavua.

Another advantage of using a Beit Din Kavua is that many Batei Din, such as the Beth Din of
America and the State of Israel rabbinic courts, have published formal rules and procedures for the
Dinei Torah that they adjudicate. An ad hoc Zabla Beit Din does not such rules and procedures
which specifies the rules the Dayyanim will follow. A solution to this problem, however, is to
denote in the Shtar Beirurin/binding arbitration agreement that the Zabla Beit Din will be following
the rules and procedures of a specific Beit Din.

Choice of Law – Din, Pesharah and Pesharah Kerovah L’Din

As surprising as it sounds, there is a choice of law in Beit Din. While every Beit Din judges based
on Jewish Law, Halacha offers three options regarding the methodology of decision making to be
employed by the Beit Din. One option is Din, the strict application of the Halacha. Another is
Pesharah, which can mean either compromise or equity (Batei Din vary in their understanding of
the term Pesharah). The third option is Pesharah Kerovah L’Din which is a blend of Din and
Pesharah.

While the Beth Din of America used to offer the choice of pure Din in their rules and procedures,
in recent years it offers only either Pesharah or Pesharah Kerovah L’Din. Both the Gemara and the
Shulchan Aruch strongly discourage applying strict Din in practice. In fact, many Batei Din today
regard a litigant who insists on a Din judgment as a Mesareiv L’Din, in contempt of rabbinic court.
Such is the extent of the avoidance of conducting a Din Torah (Beit Din litigation) in accordance
with Din.

The preferred method is Pesharah Kerovah L’Din since Pesharah often appears to be arbitrary.
Indeed, Batei Din will apply Pesharah only if the parties specifically request a pure Pesharah.
Pesharah Kerovah L’din is the preferred method of conflict resolution since on the one hand it

32
hews for the most part to the rules set forth in the Shulchan Aruch, but it nonetheless offers some
flexibility to consider equity and fairness in decision making.

One would think that a plaintiff would prefer Din since this would allow collection of all he is
owed without compromise. However, a plaintiff might prefer Pesharah since the rules of evidence
are somewhat relaxed in such case and therefore it may be easier for him to prove his case to the
Beit Din. In addition, some Batei Din will not excuse Gerama (indirect damage) if ruling in
accordance with Pesharah unlike pure Halacha which does not obligate one to pay for damage
done indirectly. Thus, there are both potential advantages and disadvantages to both plaintiff and
defendant in regard to choosing either Din, Pesharah or Pesharah Kerovah L’Din.

The choice of Din, Pesharah and Pesharah Kerovah L’Din is spelled out in the Shtar
Beirurin/binding arbitration agreement signed by the litigants appearing before Beit Din. Litigants
should also ask the written clarification for their understanding and application of Pesharah (is it
compromise or equity) and Pesharah Kerovah L’Din (is it inclined more to Pesharah or to Din).
The Beth Din of America explains their standards regarding Pesharah and Pesharah Kerovah L’Din
in their rules and procedures, available at www.bethdin.org.

We should clarify that Pesharah is not an extra-Halachic consideration. Rather it is an integral

component of Halacha since the Torah commands us (Devarim 6:18) “V’asita Hayashar V’Hatov
B’eini Hashem Elokecha”, to do the right and the good in the eyes of Hashem. Rashi explains that
this refers to the idea of Pesharah. Thus, when Dayyanim apply Pesharah Kerovah L’Din or
Pesharah they are acting well within their Torah mandate and not outside the boundaries of
Halachic dispute resolution.

Role of your Rabbi

Generally speaking, it is not a good idea for one’s Rav to resolve a monetary dispute. Tensions
often run very high regarding monetary disputes and it is usually preferable for a neutral and
disinterested party or parties to resolve the dispute. Moreover, a Rav is biased towards his
congregants since he presumably has a deep connection with them, thereby rendering him
disqualified to render an unbiased decision regarding a dispute.

Introduction to the Fictional Case

Before we present our model case we need to introduce three basic Halachic concepts. The first is
Hamotzi Meichaveiro Alav HaRa’ayah, the burden of proof rests upon the plaintiff. Witnesses and
documents are classic forms of evidence. E-mail correspondence today is often used as evidence
in contemporary Batei Din. Thus, if one claims that his friend owes him $24,000 and produces no
evidence to that effect, the Beit Din will not award any compensation to the plaintiff.

The second concept is Shevu’at Modeh B’Miktzat. In this case, the plaintiff makes a claim and the
defendant admits to part of the claim. Admission is the strongest form of evidence as Hazal teach
Hoda’at Ba’al Din K’Mei’ah Eidim Dami, an admission is the equivalent of a hundred witnesses.
However, if there is no evidence beyond the amount of admission, the Beit Din does not obligate
the plaintiff to pay any more than he has admitted.

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However, since he has admitted to part of the claim, the Torah demands an oath from the defendant
that he does not owe any more money than that which he admitted. Thus, for example, if one
demands $24,000 from his friend and he admits to $100 of the claim, the friend is required to pay
only $100 since there is no evidence to the amount beyond that sum. However, he must take an
oath that he truly owes no more than $100.

The third concept is called Pidyon Shevuah, the redemption of an oath. As we discussed at length
last year in Kol Torah (archived at www.koltorah.org) the virtually universally accepted among
contemporary Batei Din is to refrain from administering oaths. In a situation where one is obligated
to take one of the three Torah level oaths, Modeh B’miktzat, Shevuat Eid Ehad (where there is one
witness to bolster the plaintiff’s claim) and Shevuat Hashomerim (the oath taken by a watchman
who claims that the item he was guarding was stolen, that he did not take the item) the Beit Din
will impose a Pesharah upon the parties. The Beit Din in issuing such a Pesharah must exercise
good judgment to insure that a fair and reasonable decision is issued, as we discussed at length last
year.

A Fictional Case

The following dispute was brought to a Beit Din in Northern California in the winter of 2012. Any
resemblance to any individual or event is purely coincidental. A musician hired a website designer
to help sell twelve of his recordings on the internet. The musician engaged the website designer to
perform three tasks – edit the recordings, post them to his website and to add e-commerce
capability to his website. In testimony before the Beit Din, the musician and website designer had
no disagreement about this point.

They did, however, sharply disagree about the terms of payment. Plaintiff (the website designer)
claimed he was hired to work for $120 per hour and that he worked for 200 hours to complete the
assigned tasks. Thus, he claimed that he was owed $24,000. The defendant (the musician) claimed
that the agreement was to pay twenty five percent of the proceeds from the sale of the recordings.
Defendant stated that he received a total of $400 for the recordings. Thus, he claimed that he owed
only $100. The terms of payment were not recorded in a document nor were there any witnesses
to testify what the parties agreed to pay.

Our Fictional Case

The following dispute was brought to a Beit Din in Northern California in the winter of 2012. A
musician hired a website designer to help sell twelve of his recordings on the internet. The
musician engaged the website designer to perform three tasks – edit the recordings, post them to
his website and to add e-commerce capability to his website. In testimony before the Beit Din, the
musician and website designer had no disagreement about this point.

They did, however, sharply disagree about the terms of payment. Plaintiff (the website designer)
claimed he was hired to work for $120 per hour and that he worked for 200 hours to complete the
assigned tasks. Thus, he claimed that he was owed $24,000. The defendant (the musician) claimed
that the agreement was to pay twenty five percent of the proceeds from the sale of the recordings.

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Defendant stated that he received a total of $400 for the recordings. Thus, he claimed that he owed
only $100. The terms of payment were not recorded in a document nor were there any witnesses
to testify what the parties agreed to pay.

Resolution According to Pure Din

If this case were to be resolved according to pure Din, strict Halacha, the Beit Din would obligate
the musician to pay only one hundred dollars. Beit Din would not obligate him to pay any more
money since there is no evidence that he owes anything above this amount. However, Beit Din
would require the musician to take an oath that he owes no more than one hundred dollars (Shevuat
Modeh B’Miktzat). Nonetheless, we noted in our previous issue that pure Din is rarely if ever
applied in contemporary Beit Din.

Resolution According to Pesharah Kerovah L’Din

We also noted last week that Pesharah Kerovah L’Din, a blend of pure Pesharah and Din, is the
preferred method of conflict resolution in Beit Din. In our fictional case, the litigants signed a Shtar
Beirurin/binding arbitration agreement in which they agreed that the Beit Din should adjudicate
their dispute in a manner of Pesharah Kerovah L’Din.

Many Batei Din follow Rav Kook’s recommended course of how to arrive at a ruling in the manner
of Pesharah Kerovah L’Din. The Beit Din first determines how to resolve the matter in accordance
with pure Halacha. Then they consider the equities of the situation. In this situation, the website
designed performed a considerable amount of work for the musician and thus fairness would
dictate that he be paid compensated than a hundred dollars for his efforts. We reemphasize that
which we noted last week, that when Dayyanim apply Pesharah Kerovah L’Din or Pesharah they
are acting well within their Torah mandate and not outside the boundaries of Halachic dispute
resolution.

In this case a Beit Din could apply the Halachic manner of resolving of a somewhat similar, albeit
not identical, situation. The Shach (Hoshen Mishpat 333:44) and Ketzot Hahoshen (331:3) address
a situation in which one hired a professional to perform a task related to his profession but did not
specify the wages. Halacha assumes that professionals do not work for free unless they explicitly
state that they are doing so and thus in the usual situation the professional must be compensated.
However, since a wage was not specified the Shach and Ketzot rule that the employer pays only
the lowest amount paid for such work in the locale in which it was performed. We cannot assume
that the employer would have hired someone to work for the lowest amount paid in his area.

We must stress that the Shach and Ketzot’s case is not identical to the fictional case we are
presenting. In our case the parties specified a wage but disagree as to what was agreed to.
Nonetheless, a Beit Din could apply this somewhat analogous case, since when there is a dispute
as to the agreed wage, it is as if no wage was agreed upon. Moreover, compensating the musician
in accordance with the lowest amount paid for such work in his area is far more equitable than
giving him only a hundred dollars for his time, efforts, and talent.

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A Beit Din would have to consider in such a case as to what is the “locale” in such a situation.
Such work could have been farmed out to anywhere in the world. For example, the musician could
have hired people in parts of the world such as India, where they receive far lower wages than
what is paid in the United States for performance of such tasks. A Beit Din would have to decide
whether the payment should be the minimum paid for such work in Northern California or
anywhere in the world.

A Beit Din would rule that the wage is determined by the lowest fee charged in Northern California
since it is clear that musician was interested in hiring someone who resides locally and not someone
who lives on the other side of the globe. There are distinct advantages to working with someone
who lives nearby and it is obvious that the musician was interested in these advantages since he in
fact hired someone who lives close to him.

The Beit Din in our fictional case consulted with no less than five experts and each reported that
five thousand dollars was the minimal amount paid for such work in Northern California. Thus the
Beit Din obligated the musician to pay five thousand dollars in accordance with a blend of Pesharah
and Din. In addition, the Shevuat Modeh B’miktzat which he is obligated to take according to strict
Din, is redeemed in a reasonable and fair manner in accordance with the contemporary Beit Din
practice of Pidyon Shevuah (discussed last week).

Interestingly, in our fictional situation, the musician insisted on taking a Shevuah (oath) to bolster
his claim and excuse him from paying more than one hundred dollars. The Beit Din, however,
declined to administer a Shevuah in accordance with contemporary practice.

Resolution According to Pure Pesharah

If the Beit Din were to have decided this issue based on pure Pesharah the Beit Din might have
awarded compensation to the website designer in accordance with the average wage paid in
Northern California. Thus, had the parties agreed to Pesharah the website designer would have
been granted approximately another thousand dollars. Pesharah Kerovah L’Din, however,
demands from the Beit Din to remain near the bounds of Din which calls for paying only the lowest
wage, in a somewhat similar situation.

Lessons to Learn from the Fictional Case

Had the parties to our fictional Din Torah committed their agreement to writing, the dispute would
not have emerged from their interaction. In fact, the Gemara (Bava Metzia 75b) urges loans to be
issued in writing and before witnesses to avoid problems. Interestingly, a veteran Dayan, Rav
Chaim Cohen, once commented that Dinei Torah usually arise amongst people who are not
organized in their affairs and expose themselves ambiguity created by a lack of clarity in their
business dealings. Carefully clarifying the terms of a business interaction greatly reduces the
likelihood of dispute and the need for litigation.

Another lesson is that the litigants in our case should have settled their dispute amongst themselves
without resorting to Beit Din resolution. The parties in our fictional case were fighting bitterly over
this matter and each side hired attorneys to represent them in Beit Din. In addition, a full Beit

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Din of three Dayyanim was absolutely necessary in this hotly contested situation. Had the musician
offered to give the website designer seven thousand five hundred dollars and had the website
designer agreed to accept payment of even two thousand five hundred dollars, they would have
each saved money considering the costs of their lawyers and the costs of the Dayyanim.

One wonders what psychological forces drive people to pursue litigation even though they will
save money if they compromise. It is possible that the psychological mistake many people make
is that they seek victory rather than fairness. However, this is usually a counterproductive activity
since in most situations it is in both parties’ interests to settle their differences amongst themselves
without having to pay lawyers and Dayyanim. One should also consider the psychological costs
of the stress and time that is expended in the course of the pursuit of an intense litigation. The
health benefits of settling a dispute should not be dismissed as trivial.

Conclusion

In our fictional case, the plaintiff acted correctly and went to civil court to confirm the Beit Din’s
award. The civil court, seeing the reasoned decision offered by the Beit Din (see our discussion of
this issue in Gray Matter volume three) and recognizing its fairness, upheld the rabbinic court
award. The parties learned their lessons and took care to record their business transactions in
writing and sought to settle any disputes they had without resorting to litigation.

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 Justice and Divine Vengeance Pursuing Crime
Pierre-Paul Prud'hon

"FOR THE JUDGMENT IS GOD'S": HUMAN JUDGMENT AND

DIVINE JUSTICE IN THE HEBREW BIBLE AND IN JEWISH
TRADITION

Haim Shapira writes:9

9 Journal of Law and Religion , 2011-12, Vol. 27,

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 Can one still follow the piskei halachah of a fallen rabbi?
Avrohom Gordimer writes:10
Rabbi Schachter: No. The pasuk in Navi (Malachi 2:7), as expounded by the
gemara (Moed Katan 17a), says that a Torah teacher must be sinless and righteous like a
malach (angel). According to the Torah, we only follow a rabbi’s ruling if he properly
models Torah behavior. If he is a ba’al aveirah, if he knowingly violates Biblicalor rabbinic
laws, he is not qualified to teach and render halachic rulings. When members of the public
become aware of his improper behavior, they may no longer rely on his judgment for any
rulings, unless it can be verified that such rulings were rendered before the rabbi’s sinful
conduct began. Since it is often not possible to ascertain when these rulings were rendered,
one should ask another rabbi for a new pesak.
Although people use [Marcus] Jastrow’s [Aramaic] dictionary [for Talmudic and
Midrashic terminology], and I was told that Jastrow was not Orthodox, that is different
because that is an issue of translation, not pesak (halachic adjudication). For a pesak, a
rabbi needs to consider all issues before him, and weigh and evaluate them. It is very
different than mere translation. To issue halachic rulings, one must be part of the chachmei
haMesorah (Torah scholars who follow the Torah’s traditions). A rabbi who sins,
especially if he commits a crime, is certainly not in this category.
JA: What does one do with the sefarim written by such a rabbi?
RS: They should not be used. Since his sefarim include his ideas and rulings, they fit into
the prohibition against studying Torah from someone who is unfit due to his improper
behavior. Any time someone writes a sefer, he fleshes out and resolves apparently
contradictory passages. This is called being machria—providing one’s own resolutions in
Torah study. The type of person we are discussing is not qualified to be machria and,
therefore, his sefarim cannot be used. If it can be verified that the sefarim and the halachic
rulings were issued before this person’s sinful behavior began, only then can they be relied
upon and quoted.
JA: Can we/should we continue to cite divrei Torah in his name?
RS: We are not allowed to do so. The gemara (Avodah Zarah 35b) says that if a rabbi
violates halachah, one cannot say divrei Torah in his name. The statements found in the
Talmud in the name of Elisha Ben Abuya were made when he was still committed to Torah
observance and belief (see Tosafot, Sotah 12b). If it would appear that the books and

10 https://jewishaction.com/religion/jewish-law/halachah-and-the-fallen-rabbi-q-a-with-rabbi-hershel-schachter/

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 articles of the fallen rabbi were written before he began his sinful behavior, they may be
used.

Does Jewish Law impose a responsibility to prevent criminal action? Does Halakha
sanction report Jewish criminals to secular authorities? May an Orthodox Jew prosecute
Jewish criminals?

Rabbi J. Simcha Cohen writes: 11

The Rambam rules:

11 issue 3 of Conversations, the journal of the Institute for Jewish Ideas and Ideals.
https://www.jewishideas.org/article/reporting-and-prosecuting-jewish-criminals-halakhic-concerns

59
 Hilkhot Rotseah, 1:14, also, Shulhan Arukh, Hoshen Mishpat 426:1

This obligation to prevent crime is not limited to life-threatening situations or even to acts
of physical violence, but applies as well to pecuniary matters.

Indeed, the rabbi’s rule that it is even morally incumbent upon one to rectify an erroneous
legal decision. This is noted in Shevuot 31a where it states: "How do we know that a
disciple sitting before his master, who sees that the poor man is right and the wealthy man
wrong, should not remain silent? Because it is said: ‘From a false matter keep far'" (Exodus
23:7). This case teaches us that silence itself may be a form of falsehood. In a circumstance
where silence would result in an erroneous legal decision, it is obligatory to speak out and
rectify the wrong. Even though a case is being judged by a master rather than a disciple,
and normally it would be considered audacious to contradict one's teacher, still the biblical
injunction requires one to reveal the truth. Personal qualms about ruffling the dignity of
the master by contradicting his sagacity or ruling have no bearing on the issue.

Yet not all efforts to report or prevent a crime are lauded. Indeed, there is a fascinating
citation relating to this concept in Pesahim 113b. The Talmud reports that a man named
Tuvia sinned. He committed adultery. A man called Zigud was aware of this sin and by
himself, without another witness, he came to Bet Din, the rabbinical court, to testify against
Tuvia proclaiming that Tuvia was an adulterer. Rav Papa, the senior Rav of the Bet Din,
punished Zigud for testifying. Zigud was appalled. He called out in protest, "Tuvia sinned
and Zigud is punished?" In other words, the Bet Din did not punish Tuvia for the alleged
sin of adultery, so why was Zigud punished? The Talmud notes that Zigud was punished
for he was guilty of the crime of lashon hara (tale bearing or being slanderous about
another).

In Jewish law, testimony relating to adultery require a minimum of two qualified witnesses.
Thus, Zigud should have known that he had no standing in court by himself without a
second witness and that the Bet din would not act upon his testimony; yet he persisted in
testifying. Zigud, therefore, was in effect merely spreading gossip about Tuvia. The fact

60
that the allegation may have been true was of no concern. Zigud was punished for
informing others of slanderous material. He should have kept knowledge of the immoral
act to himself.

Of major concern is the concept of mesira (the prohibition against one Jew informing the
secular courts and/or police of the crime of another Jew). Jewish law deems the act of
informing against Jews to Gentiles to be such a negative, reprehensible crime, that the
codes overtly note that anyone who violates this prohibition "loses his share in the world
to come" (Shulhan Arukh, Hoshen Mishpat 388:9). The need for the codes to detail the
religious punishment for this crime emphasizes the moral communal repulsion. This
concept places major obstacles on the previously articulated mandate to avert crime. Based
upon the strictures of the mesira prohibition, a Jew should be withheld from testifying
against another Jew in a secular court. Indeed, it would appear that one may even be
prohibited to provide evidence of a Jewish person's crime to the secular authorities. Also
at issue is whether the mesira rule may be used by Jewish criminals to intimidate witnesses
against them. This means that a potential witness may possibly be told that should he testify
against another Jew, the entire Jewish community will ostracize him for he will be
classified as an informer.

The Rama rules that a person being physically abused by another may inform the secular
government about the attacker (Hoshen Mishpat 388:7). The halakhic commentator, the
Shakh, notes that the laws of mesira simply do not apply when a victim seeks to extricate
himself from an abusive situation (388:45). One may not inform about a Jew to punish him
for acts of the past. However, to cease abuse, it is permissible.

Based upon this decision of the Shakh, the Tzitz Eliezer (vol. 19:52), ruled that one
certainly may inform the government in cases of child abuse. Thus, even without life-
threatening conditions, it is deemed meritorious to report a parent who may be abusing his
child. The Tzitz Eliezer cites two additional sources to support his ruling.

Firstly, the Arukh HaShulhan (Hoshen Mishpat) 388:7) comments that the original laws of
mesira related to such governments where the rule of law was not operational. Accordingly,
the concept of mesira was set up to protect Jews from inequitable governments. It was not
applicable, he contends, to a government like Great Britain. Based on this theory, one may
report cases of abused children because the law of mesira is not in effect in a democratic
society ruled by an equitable set of laws.

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The second supportive case cited by the Tzitz Eliezer also has contemporary ramifications.
The Mabit in a responsum gives the impression that a Jewish court, a Bet Din, may refer a
case to the secular courts in the event that they lack the authority or power to enforce a
decision.

For example, he deals with a case where Bet Din actually referred a problem to the secular
government for enforcement (part 1:Siman 22). Thus, in child abuse situations, if Bet Din
is made aware of a situation that cannot be properly handled by the rabbinical court, the
rabbis would grant permission to seek out the protection of the secular courts and the police.
The practical implication of this concept is the recommendation to consult a rabbinical Bet
Din as to the propriety of reporting a crime or testifying against another Jew in the secular
court system. Once Bet Din permits the utilization of the police or the secular courts, the
individual reporting a crime should have no qualms about his actions. In this situation, the
odious reputation applied to a person who informs upon another Jew to the secular police
or courts would not apply.

In addition, the Shulhan Arukh rules that to prevent a public crime, or a number of
individuals from becoming victims of a crime, it is also permissible to seek out the
protection of the secular government (388:12). Thus, to put a stop to abuse or to prevent a
crime that would be committed against a large number of people, the laws of mesira would
not be operational.

This indicates that, unless one held the position of the Arukh HaShulhan, that the concept
of mesira was not applicable in democratic societies, there does not appear to be any
halakhic permission to report to the police and the secular government a crime that already
took place, even if the crime has negatively impacted a number of people.

Though halakhah, as noted, does specify conditions in which it is permissible to report

criminal action to secular authorities, clarification is yet necessary to determine the general
halakhic guidelines for reporting Jewish criminals; also whether an Orthodox Jew is
permitted to serve as a prosecutor. Perhaps a Jew should not be the person representing the
secular, non-Jewish legal system.

Indeed, Rav Moshe Feinstein rules that it is wrong to turn in to the police a thief who
robbed a Sefer Torah. He argues that a prison sentence is generally accepted as punishment
by the American courts for robbery. This punishment of imprisonment for robbery is not
noted in Jewish legal sources. As such, the secular governmental court system will give the
criminal a greater punishment than that ordained by Jewish law. This, he ruled, cannot be

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permitted by halakha. The source for this is the talmudic citation (Moed Katan 17a) that
relates a case where Raish Lakish was in charge of guarding a garden of fig trees. A person
without permission ate a number of figs.

This person even disregarded all warnings to desist. Raish Lakish, therefore, placed this
man in excommunication. The person complained that Raish Lakish was unfair in his
treatment of the crime. His argument was that his sin generated a financial loss to the owner
that he was willing to repay. At no time, contended this man, did he deserve the punishment
of excommunication. Raish Lakish sought the counsel of the sages and was told that the
excommunication he rendered was excessive and, therefore, invalid. Based upon this
citation, Rav Moshe rules that turning a thief over to the police would generate a
punishment in excess of that which Jewish law would set up and, therefore, was not
permissible (Iggrot Moshe, vol. VIII: Orakh Hayyim part 5: Siman 9:11). This ruling would
prevent a prosecutor from seeking any punishment beyond that outlined by Jewish law.

This decision of Rav Moshe appears to be challenged by a number of sources. First, the
previously mentioned responsum of the Mabit deals with a case in which the Bet Din
referred a Jew to the secular government who placed the Jew in jail. The general rule
derived from this situation is that when the Jewish court system cannot handle a problem
case, it may be turned over to the secular government for enforcement, even though a
punishment may be exacted that is more arduous or excessive than Jewish law would
establish. Raish Lakish's case may simply have been one in which his reaction was deemed
excessive. Perhaps, though, in cases where Jewish enforcement is not practical,
governmental action may be the only recourse.

The Talmud in Bava Metzia (83b-84a) clearly portrays Jews turning in Jewish criminals to
a Gentile power who punished such offenders above and beyond the standards or Jewish
law.

Rabbi Eliezer ben Rabbi Shimon met a Jewish policeman and queried him concerning his
job: "Perhaps you take the innocent and leave behind the guilty?" The response was that
he had no choice but to detect and report criminals contending, "It is the king's command."
Rabbi Eliezer then gave him sound advice to help him detect criminals. When the
government heard of this incident, Rabbi Eliezer himself was given the job of turning
criminals over to the authorities and he performed his task with success. This disturbed
other rabbis.

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In fact, Rabbi Yehoshua ben Korhah sent a message to him saying, "Vinegar, son of wine,
how long will you deliver the people of our G-d for slaughter?" Rabbi Yehoshua disparaged
Rabbi Eliezer. "Your father was like wine, you are vinegar. Vinegar is wine that is spoiled.
Rabbi Eliezer, the traits of your holy father did not pass on to his son. You are guilty of
informing on Jews and you should cease and desist."

Rabbi Eliezer responded, "I am not turning over good or innocent people. They are
offenders who should be punished." In response, Rabbi Yehoshua claimed, "Let the owner
of the vineyard eliminate the thorns." In other words, it is not for you to do. Let others do
it." There is no indication that Rabbi Eliezer changed his position or view. The Talmud
further states that a similar situation happened to Rabbi Yishmael ben Rabbi Yosi. Eliyahu
the prophet rebuked him for turning in Jewish criminals to governmental authorities. Rabbi
Yishmael responded that he had no choice for "it is the royal command." Eliyahu directed
him to flee to another area where he would not be commanded to turn in Jewish criminals.
Thus, an ancient debate about this issue exists.

Of importance is that the Bet Yosef, in his commentary on the Tur Shulhan Arukh,
discusses this Talmudic citation. He notes that secular law does not follow concepts of
Jewish law. Secular law will punish offenders based upon the testimony of relatives, a
situation not accepted by halakha. Such punishment will be ordained even without proper
warning as stipulated by Jewish law. Yet, the laws of secular governments are necessary.

Otherwise, society will be overcome by people who do not tell the truth. (The implication
is the fact that the rabbis cannot enforce ethical or moral behavior.) The Talmud, indeed,
relates that great rabbis detected and turned in criminals to secular authorities. Though they
were rebuked by Rabbi Yehoshua and Eliyahu the prophet, it should not be viewed that
such rabbis were fundamentally in error about the permissibility of their actions.

It was, rather, due to the great piety of such rabbis that they should have personally
refrained from being the ones who helped Jews to be punished. In other words, people
known for great sanctity and piety should not be involved in any way with the punishment
of Jews. As a son of a noted pious rabbi, Rabbi Eliezer was called "son of wine." He, too,
should conduct himself with the highest level of piety.

Under no circumstances were Rabbi Eliezer or Rabbi Yishmael in violation of Jewish law.
Indeed, in the event that such rabbis violated Jewish law, this violation should have been
explicitly noted. Also, Rabbi Yishmael tells Eliyahu that he had a job to do.

64
If the process was wrong, if they were in violation of halakha, then having a job to perform
from the government would not be an excuse. Eliyahu should have responded by saying,
"Who said your blood is redder than anothers?" (Pesachim 25b) That statement is utilized
to prevent a person from killing another to save his own life. It should have been directed
against Rabbi Yishmael.

If Rabbi Yishmael was implying that he was in a life-threatening situation should he refuse
to do the bidding of the king to apprehend criminals, then Jewish law would have ruled
that one may not save one's life by killing another. The fact that the rabbis were not simply
informed that their course of action was in violation of Jewish law teaches that there is
nothing wrong with serving in a professional capacity to help the government eliminate
criminals (Bet Yosef, citing the Responsum of the Rashba, Hoshen Mishpat 388)

.
What is surprising is that Rav Moshe cites this Bet Yosef in the previously noted
responsum. He remarks that the case of Rabbi Yishmael does not contradict his ruling that
one may not hand over a criminal to the police in a situation where the punishment will be
greater than by Jewish authorities, for a person appointed by the government is in a
different category.

In other words, Rav Moshe admits that the Bava Metzia case deals with punishments more
onerous than by Jewish law. The actions were deemed permissible solely because the
rabbis were agents of the authorities. Yet the rationale that one is an agent of the secular
authorities relates only to Rabbi Yishmael.

Rabbi Eliezar does not utilize this excuse. He felt that he was providing a proper, moral
course of action by eliminating criminals from society. What was his rationale? How did
he harmonize his position with the laws of mesira? Though this case, together with the Bet
Yosef's analysis, seems to allow a prosecutor to continue in his profession, it is not clear
as to why his role pragmatically does away with the entire concept of mesira. If an action
is a violation of Jewish law, then it should be morally wrong to be involved in such action
whether or not one had a job to perform.

I suggest that there is a concept of Judaism that is so important and so vital that it alters the
very nature of the concept of mesira itself. The Rambam rules that the worst sin of the Jew
is the crime of hilul hashem (the profanation of the holy name of G-d). As such, should this
sin take place, atonement is not granted until the sinner repents, prays on Yom Kippur for
forgiveness, is afflicted with pain, and finally dies. Death is the final atonement. (Hilkhot

65
Teshuva 1:4). It would appear that a vital goal of the Jew is to prevent the public shame or
embarrassment of the holy name of G-d. In a country known for its commitment to the rule
of law, it is a form of public shame for a member of the Jewish community to violate the
laws of the land. A Jewish criminal is a shame to the Jewish religion.

A religious Jewish criminal is a form of hilul hashem, Judaism is an ethical, ritual code of
law. Jewish criminals make a mockery of our ethical standards. They send the message to
the general society that Jews care not for the rule of law. The more visibly Jewish the
offender, the more it generates a degree of hilul hashem.

This, I believe, was Rabbi Eliezer's rationale for detecting and turning in Jewish criminals.
He was eliminating thorns. He felt that his role was the most pious and sacred function of
a rabbi. He was keeping the reputation of the Jewish community high and dignified in the
eyes of the world. His symbolic message was that Jews are moral. Jewish criminals would
not be tolerated by the leaders of the Jewish community. Accordingly, to uproot criminals
may be viewed from this perspective as a sacred profession. Even those who disagreed did
not believe that reporting criminals to authorities was a violation of Jewish law. Their
position was one of sensitivity. They felt that sages should not be personally responsible
for the punishment of Jews.

Thus, a person may utilize the principle of preventing hilul hashem as an understandable
rationale for informing the government about another Jew. Just as it is permitted, as a
means of preventing damage to the Jewish community, to turn over to the police someone
who is attempting to bring about a public crime or perform criminal acts to many people,
so, too, should it be permitted to forestall a public shame or embarrassment to the Jewish
community at large. It could be designated as "religious damage control."

Indeed, there is a precedent for the utilization of such a concept. It is known that in cases
dealing with an attempt to extract funds from another, Jewish law requires the presence of
two witnesses, while secular law relies upon the testimony of a single witness. In the event
that a Jew, by himself without any other witness, has testimony regarding extracting funds
from another Jew for the benefit of a Gentile, Jewish law would not deem it proper to testify
against the Jew in a secular court.

The reason is that the testimony of a single witness would cause a Jew to lose funds via a
procedure not acceptable by Jewish law. Should, however, the Gentile have relied upon the
Jew to testify, then, even though funds would be extracted through a procedure not
recognized by Jewish law, the Jew would be required to testify because his silence would

66
be a form of hilul hashem (Rosh, Bava Kama, ch. 10, Siman 14, Shulhan Arukh Hoshen
Mishpat 28:3). Thus, the sin of hilul hashem overrides the injunction against testifying.

It may be opined that the above obligation to report and/or prosecute even observant Jewish
criminals to obviate charges of Hilul HaShem may relate to crimes that are well known. In
a case where the crimes are not publicly known, perhaps the concept of Mesira should
outweigh other concerns and silence should be the preferred mode of reaction.

This position may not be defended. Chaucer once wrote, "truth will out". Sooner or later
crimes become public. In the event such does occur and it becomes known that religious
Jews were aware of the criminal action but refused to report the crime to authorities, the
Jews who practiced silence will definitely generate a public desecration of G-d's Holy
Name. It would be said that Jews tolerate Jewish criminal activity.

The key to any action or silence of a Jew is whether an action or inaction brings glory to
our religion or shame. As stated, in the beginning of this article, silence in the face of
injustice is deemed sinful.(Shevuot 31a) A silence that may question the Jewish
community's commitment to law is surely a Hilul HaShem. Jews should opt for potential
sanctification of G-d's name and not condone practices that could lead to a possible
desecration of our religion.

The above analysis manifests that reporting Jewish violators of law is not necessarily a
violation of Jewish Law, but, rather, a means of openly demonstrating that Orthodox Jewry
will not tolerate criminal action. As such, it is a form of Kiddush HaShem, sanctifying G-
d's name and accordingly permitted and even to be extolled.

67
Joshua Yuter writes:12

Introduction

The purpose of this essay is to explore the dimensions of “justice” as defined by rabbinic
Judaism, particularly as it pertains to the challenges posed by allegations of sexual
harassment and abuse.

The recent #MeToo and #TimesUp movements have been instrumental in lowering
society’s tolerance for sexual harassment, abuse, and assault. What might have been
“socially acceptable” a few years ago may now result in public excoriations. Morewomen[1]
are publicizing their experiences, including those which occurred many years ago. By their
nature, claims of sexual abuse are rarely accompanied by evidence or witnesses, and the
#MeToo movement has adopted a slogan of “believe women” to bestowdefault credibility
upon such allegations.

Unsurprisingly, there has also been some pushback. The default posture of “believing
women” conflicts with conceptions of justice predicated on the presumption of innocence,
and that guilt must be established beyond a reasonable doubt. In practice, this can shift the
injustice from the accusers to the accused, as Emily Yoffe demonstrates in a series of

12 https://thelehrhaus.com/commentary/jewish-justice-and-metoo/

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essays for The Atlantic regarding policies on university campuses. As Yoffe writes
elsewhere, “If believing the woman is the beginning and the end of a search for the truth,
then we have left the realm of justice for religion.”

At this point, I suggest we distinguish between implications for “believing women.” To

take a clear-cut case, someone who provides empathy and understanding for an alleged
victim does so without imposing a cost on anyone else. I believe the tension arises when
the implication of believing an accusation means taking punitive action. In other words,
the resistance is less about “believing women,” and more about imposingthe
consequences of believing women.

Typical Western judicial systems are regulated by robust rules of civil procedure and due
process, and are administered by professionals trained in evaluating evidence. Many
include an appeals process that provides a check against errors. The punishments imposed
by a court can be severe, but there are also higher standards to ensure a person is guilty and
deserving of punishment.[2]

But while the punishments imposed by a society or organization might generally not be as
severe as those of legal systems, such groups are not bound by the same rules of due
process, evidence, or appeals. Expulsion from one’s profession,[3] university, orcommunity
is a trivial inconvenience compared to the trauma endured by abuse victims. However, for
those who are falsely accused, these can be monumental and possibly ruinous life
disruptions. Consequently, even those who would unconditionally believe women when it
comes to providing support, may be unwilling to take action against the accused based on
those same allegations. By acting on the allegations, they assume responsibility for their
decisions. On a broader level, they may also be averse to fostering a society in which
allegations alone are sufficient to ruin someone’s life.

At the same time, there are undeniable consequences to not believing legitimate
allegations. The immediate consequences are obviously felt by the victims themselves, to
whom insult is added to injury. And abusers who retain official positions may continue to
abuse others, especially knowing that they face no accountability, which in turn begets
even more abuse. At the same time, the societal risks of not addressing abuse are no less
significant: it is hard to have faith in a community in which abusers thrive with impunity.

And if “believing women” only requires a serious investigation (as opposed to

automatically assuming guilt), there would still need to be standards to determine when
action should be taken against someone. Overzealousness can result in unjust punishment,
while equivocation can result in unjust exculpation. We must remember that whether or
not someone was harassed or abused is a matter of fact. The problem is that the rest of us
do not necessarily know what happened without proof.

Rabbinic Judaism

In seeking general guidance as to how to best navigate these difficult tensions, it is worth
exploring the ways in which the Rabbis addressed many of these issues. The Sages

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confronted similar challenges in creating legal and social systems which simultaneously
addressed the competing needs of protecting the innocent, punishing the guilty, and
maintaining the integrity of Jewish society. In doing so, they adopted seemingly
contradictory approaches towards achieving justice which parallel the contemporary
debates.

One source illustrating this tension discusses the difficulty in securing capital convictions
under Jewish law. R. Tarfon and R. Akiva boast that had they had been on the Sanhedrin,
due to their diligence in interrogating witnesses, no one would have been executed. This
would seemingly be a positive outcome, following the principle that it is better to let the
guilty go free than convict the innocent.[4] However, R. Shimon ben Gamliel responds to
R. Tarfon and R. Akiva that they would have increased murders in Israel due to the number
of murderers they would have released (M. Makkot 1:10).

I do not see R. Shimon ben Gamliel’s comment as expressing a disagreement in law as

much as reminding R. Tarfon and R. Akiva that even if it is preferable to acquit the guilty
over punishing the innocent, doing so is not without its own costs. That it is worse to punish
the innocent in no way implies that letting the guilty go free is a desirable outcome either.

With this in mind, we see that the rabbinic tradition records conflicting approaches
regarding imposing severe punishments or social sanctions. In these cases, some sources
strictly adhere to due process, while others allow greater judicial and social discretion in
imposing various punishments or sanctions. I attribute this latitude to the scope of rabbinic
jurisdiction, which covers religious and moral infractions in addition to civil and criminal
cases.

Depending on the circumstances, cases falling under #MeToo could be classified under
“damages,” which would result in monetary compensation to the victim,[5] or as religious
transgressions, for which abusers may face other penalties instead of monetary
restitution.[6] As we will see, the rabbinic Sages understood the importance of due process,
but also appreciated the need to use whatever tools they had at their disposal to ensure the
integrity of religious society.

Due Process in the Rabbinic Judicial System

In the rabbinic tradition, it is not only capital cases which must be treated with awe and
reverence, but civil cases as well. In particular, R. Shmuel b. Nahmani cites R. Yohanan as
saying that if a judge wrongfully takes money from one litigant and gives it to another, God
“takes his soul from him” (Sanhedrin 7a), and that “a judge should imagine himself with a
sword between his thighs and Gehinnom opened beneath him” (Yevamot 109b). A judge
should know whom he is judging and before Whom he is judging, and may “only judge
that which his own eyes can see” (Sanhedrin 6b).

With this in mind, we would expect Jewish law to hold courts to high standards of due
process and integrity before issuing a judgment. Space does not allow me to list every detail

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of Jewish civil procedure, but I will cite a few which I think are particularly relevant to our
discussion.

First, judges are supposed to be impartial. They are prohibited from “recognizing faces”
(Deut. 16:19) or favoring either the wealthy or the poor because of their status (Lev.19:15,
Ex. 23:3, Ex. 23:6). Even those who are “lacking in the commandments,” i.e., thosewho are
not observant Jews, are entitled to due process (Mekhilta de-Rabbi Yishmael Mishpatim
20).

Judges must take steps to eliminate some of the unconscious bias by treating litigants
identically. For example, both litigants may be either standing or seated, but one cannot
stand while the other remains seated (Shavuot 30a). Both litigants must be dressed
similarly, such that judges require a wealthier litigant to dress like his poorer opponent, or
provide the poorer opponent with better clothing (Shavuot 31a).

Second, the burden of proof falls on the claimant. For civil disputes this means that
whoever wishes to extract money from someone else is responsible for providing the
evidence to support the claim; it is not up to a defendant to prove his innocence. This rule
is so fundamental to Jewish civil law that it is even called “a great principle” (Bava
Kama 46a).

Finally, claims are generally validated and enforced by the testimony of two witnesses. For
monetary disputes, a single witness may be sufficient to force a litigant to take an oath of
absolution (Shavuot 40a), but not to pass judgment for or against a side.[7] For violations
of religious law, a single witness is not only insufficient for a conviction, but the witness
himself may be subject to punishment on the grounds that he is simply besmirching
someone’s reputation by testifying in court knowing that a conviction is impossible
(Pesahim 113b).

Following these rules of strict justice, many #MeToo allegations would be difficult to prove
in a Jewish court of law. Cases of “he said-she said” would have to favor the defendant in
the absence of evidence or witnesses. Even multiple accusers would not be sufficient, as
each would have to stand as an independent claim, thus requiring independent evidence or
witnesses for each incident.[8] “Believing women” as a rule is not a viable option because
of the prohibition against “recognizing faces.” Women who have been previously abused
already face self-doubt, shame, and ridicule when they come forward, even when there is
corroborating evidence. Imagine how much more these women would be silenced if faced
with a formal punishment for coming forward without evidence.

Exceptions to Due Process

Our first indication of the Rabbinic range of approaches is that the general rules of due
process mentioned, namely impartiality, the burden of proof, and requirement of witnesses,
the Talmud records exceptions. For example, we find two instances of Rava demonstrating
partiality in judgment. In one case, Rava boasts, “I should be rewarded for the times when
a Torah scholar was before me in a lawsuit, and I didn’t go to sleep until I reversed the

71
decision in his favor” (Shabbat 119a). In another instance, he accepts his wife’s claim—
not testimony—that a litigant in his court was suspected of lying. Rava did not extend this
trust to everyone. In a similar instance, Rava rejected the input of Papa on the grounds that
he was certain about the trustworthiness of his wife, but not of his rabbinic colleague
(Ketuvot 85a). While Rava might not have shown partiality between the litigants, he
privileged the extrinsic contributions of individuals to render a decision.

The rules for the burden of proof may be reversed in extenuating circumstances. In a case
involving a powerful litigant against whom witnesses were afraid to testify, R. Hisda
required the powerful litigant to prove his case even though he was not the claimant.
Despite the “great principle” of the burden of proof falling on the claimant, the concern for
witness intimidation was sufficient to reverse the normal procedure (Ketuvot 27b).

Finally, one notable exception to the “two witnesses” rule is the case of the Sotah, in which
a wife is suspected of committing adultery with a specific person (Num. 5:11-31).
Following the rabbinic tradition, the Sotah only applies when the husband formally warns
his wife in the presence of two witnesses to avoid the person in question (M. Sotah 1:1). In
this case, because the wife was warned in front of two witnesses beforehand, one witness
is sufficient to testify that the wife secluded herself with that person (Sotah 3a).

These exceptions may be no less relevant to cases of #MeToo. Perhaps we can take action
against others based on the testimony of individuals whom we know to be credible, or
perhaps we can reject the claims of those whom we know to be untrustworthy. There have
been times when victims of or witnesses to sexual assaults have been too intimidated to go
public due to the power and influence of the accused. Perhaps in these cases the burden of
proof may be similarly shifted. With increased awareness of harassment and assault and,
in some cases, required compliance training, we may be able to assume, following the
precedent of the Sotah, everyone is considered formally “warned” such that the standard
for evidence may be adjusted.

There are two additional exceptions worth mentioning, though I do not believe these are
applicable to #MeToo cases. The first is peshara, or “compromise,” which gives judges
more leeway to find a resolution. There is a rabbinic dispute over whether or not
compromise is inferior or preferable to a formal trial (Sanhedrin 6a), but even assuming
that compromise is desirable, it requires the consent of both litigants (Sanhedrin 7a). This
would mean in order for a Jewish court to avail itself of the legal latitude provided
by peshara, the defendant would have to agree to the terms. Of course, should a defendant
willingly waive certain rights, the entire calculus of “justice” changes.

The second exception is that admission of circumstantial evidence or conjecture, also

known as umdena. Normally this evidence is inadmissible for both capital and civil
cases (Sanhedrin 37b), though this, too, may be a matter of dispute. In a case where an
injured camel was found near where another camel was rampaging, R. Aha relied on the
circumstantial evidence of proximity to assess damages, even if there is no direct evidence
that one camel injured the other (Shevuot 34a). However, in R. Aha’s example, there is

72
demonstrable evidence of injury and an observable proximate cause. Neither of these
criteria are necessarily available for #MeToo allegations.

There are two other relevant features of Jewish law worth mentioning here. First, the
accused has the right to face the accuser. R. Yohanan describes someone who explains her
case to the judge before the opponent arrives as a “cunning, wicked” person (Sotah 21b).
R. Hanina interprets the biblical commandment to “hear the disputes of your people and
judge them fairly” (Deut. 1:16) as a warning to both the court and litigant not to listen to
or issue claims in the absence of the other party (Sanhedrin 7b). Another rabbinic teaching
equates hearing one side in absence of the other with falsehood (Shavuot 31a). This
requirement to face an accuser would ostensibly preclude accepting anonymous allegations
or restricting a defendant to challenge the accuser’s testimony. Unlike the previous
examples, I know of no rabbinic exception to this rule.

Second, there are varying rules for when a person’s confession is admissible in court. In
monetary cases, “the admission of a litigant is like the testimony of one hundred
witnesses,” acceptable to hold the person liable for the principal amount (not including
punitive fines). Confession is also acceptable to obligate an individual to bring a sacrifice
of atonement (Bava Metzia 3b). But for capital or corporal punishment, Jewish law
precludes self-incrimination on the grounds that “a person cannot render himself wicked”
(Sanhedrin 9b-10a). Therefore, whether or not an abuser’s confession (or even partial
confession) is admissible in a Jewish court will depend on the classification of the offense
and which penalties, if any, may be imposed.

While Jewish law provides latitude for exceptional circumstances, following the strict rules
for due process would make it difficult to secure convictions or judgments against
offenders, and may discourage people from coming forward. But rabbinic law is not
without its solutions, and has several options at its disposal to dispense a form of moral
justice, both inside and outside the courtroom.

We find rabbinic sources which allow Jewish courts to impose punitive measures outside
the normal rules of due process, even including the death penalty. In capital cases where
there is sufficient evidence that someone committed murder, but insufficient evidence for
a conviction by the standards of Jewish law, the court imprisons the defendant and feeds
the individual a diet which would cause death (M. Sanhedrin 9:5, Sanhedrin 81b).[9]

Furthermore, the Talmud records examples of Jewish courts executing transgressors when
their violations do not warrant capital punishment by Torah law because “the hour
demanded it” due to widespread violations of Jewish law (Yevamot 90b). Sarah Zagler
explains these actions as a form of court-sanctioned “moral outrage” that enables judges to
punish those who would otherwise escape punishment.

Rumor and Reputation

Even without evidence or accusations, serial abusers can develop a reputation. After the
Harvey Weinstein scandal became public, several media outlets reported that his behavior

73
was an “open secret” in the industry. In fact, references to his behavior were scattered in
various television programs and appearances.

Under normal circumstances, Jewish law prohibits spreading rumors, even if they are true,
though there may be an exception if the rumors are public knowledge (Bava Batra 39a-b).
Maimonides identifies three categories of rumors. “Gossip,” or rekhilut, is when the rumors
are true and value-neutral. “Lashon Hara” refers to gossip when the content is negative.
And “motzi shem ra” is violated when the content of the rumor is defamatory (Hilkhot
De’ot 7:2).

There are many rabbinic statements stressing the severity of gossip. According to one
opinion, someone who “tells stories” will not merit redemption. Another opinion even
equates relaying lashon hara to denying the fundamentals of Torah (Arakhin 15b).

Furthermore, aside from speaking lashon hara, even accepting, or believing negative
rumors is problematic. In one phrasing, whoever accepts lashon hara is “worthy of being
thrown to dogs” (Pesahim 118a, Makkot 23a; also see Shabbat 56a-b and Pesahim 87b).
We have already seen one example of a court equating the testimony of a single witness
with slander. Even if the testimony was accurate, because it was insufficient to secure a
conviction, it only served to damage someone’s reputation (Pesahim 113b).

It is easy to see how victims raised with this ethic against gossip may be reluctant to report
abuse, but we can also imagine how those in authority can use these sources to suppress
reports. At the same time, knowing the severity of lashon hara helps us appreciate the
following examples, in which rumors and reputation are taken seriously enough to warrant
legal and social punishments.

According to Rav, a court may administer punitive lashes based on disseminated rumors
(Kiddushin 81a). Maimonides elaborates:

Similarly, at any time, and in any place, a court has the license to give a person lashes if he
has a reputation for immorality and people gossip about him, saying that he acts
licentiously. This applies provided the rumor is heard continuously, as we explained, and
he does not have any known enemies who would spread this unfavorable report
(Hilkhot Sanhedrin 24:5).

Following this approach, courts could impose corporal punishment on individuals based
solely on their reputations, even without formal evidence or testimony. This ability gives
courts far more latitude in cases of serial abuse, though this, too, must be used with caution.

Social Sanctions

Not all punishments must be meted out by the court system. Rabbinic law also incorporates
rules for social sanctions which are not subject to the same requirements as the judicial
system. For example, a rabbinic idiom states, “Regarding bad speech, even though we do
not accept it (as fact), we should suspect (because of it).” Following this principle, R.

74
Tarfon refused to provide sanctuary to people who were rumored to have committed
murder (Niddah 61a). In another instance, R. Ashi maintains that one is permitted to
humiliate someone who has a reputation for being a philanderer (Megillah 25b).
Maimonides accordingly rules, “A person with such an unsavory reputation may be
humiliated, and scorn may be heaped on his mother in his presence” (Hilkhot De’ot 24:5).
There are additional concerns regarding the reputation of religious authorities, particularly
Torah scholars. Torah scholars hold a prominent position in Jewish society.[10] Because
following Torah is fundamental to living a Jewish life, a Jewish society requires the best
teachers. At the same time, Torah scholars are living ambassadors of Torah, and are held
to higher standards of behavior (see Shabbat 114a and Hullin 44b).

For example, in an instance where one Torah scholar had developed a poor reputation, R.
Yehuda was uncertain how to respond. The Sages needed him as a teacher, but God’s name
was being profaned through his actions. When R. Yehuda was informed of R. Yohanan’s
opinion that teachers must be like angels of God, R. Yehuda excommunicated the offending
Sage (Moed Katan 17a).

Similarly, R. Huna reported that the Sages of Usha decreed that a head of court who sinned
would be told to stay home, yet would not be publicly excommunicated unless he persisted
in sinning. On the other hand, Reish Lakish ruled against public excommunication under
all circumstances. Instead, one should “keep it dark [secret], like night” (Moed Katan 17a).
I believe that the concern of a hillul Hashem—desecration of God’s name—applies on both
sides of the equation. On one hand, exposing wrongdoing by Torah scholars causes a
profanation of God’s name (Yoma 86a). On the other hand, the violations themselves are
desecrations of God’s name, a concern which supersedes a Sage’s honor (Eruvin 63a).
Furthermore, in today’s climate, failure to censure a prominent figure results in an even
greater desecration of God’s name. An abuser discredits himself, but the institution which
protects the abuser discredits the moral integrity of the entire institution.

The contemporary rabbinate may not be held in the same esteem as it once was, but there
is still a modicum of social power which, unfortunately, has been repeatedly abused. In
some cases, the abusive behavior is systematic enough to constitute its own “open secret.”
Even though there might not be definitive evidence in these cases, rabbinic law does
provide for action to be taken based on nothing more than rumor and reputation.

Risks of False Accusations

It is worth mentioning that rabbinic Judaism is also aware of the ramifications of false
allegations. The immediate cost to an individual’s reputation is obvious, but there are also
secondary costs: false accusations result in greater skepticism of future accusations.

The Talmud relates an incident in which R. Hanina would regularly give charity to
someone every Friday. One day, the recipient’s wife told R. Hanina that they didn’t need
it, reporting that she heard him ask, “On what will you eat, the silver or gold plates?” R.
Hanina quoted in the name of R. Eliezer, “Let us be grateful for the frauds, because were
it not for them, we would be sinning every day” by not giving charity (Ketuvot 67b-68a).

75
The existence of fraud provides an excuse for skeptics of even legitimate claims. In
addition to preventing the injustice of punishing an innocent person, careful examination
of every allegation is essential to minimize the secondary risks of disbelieving actual
victims.

Repentance and Redemption

The #MeToo movement has empowered women to come forward with their experiences
even after many years of silence. This means that people are now being held accountable
for actions which took place years ago. Jewish law does not have a statute of limitations for
either civil or religious infractions. Just because an offense took place in the distant past
does not by itself absolve an individual.[11] However, it is possible that a person changed
his ways and repented in the intervening years.

What would be involved in repentance? First and foremost, a person would have to ask for
and receive forgiveness from his victim (M. Bava Kama 8:7, Bava Kama 92a). Some
prominent offenders have issued public apologies for past behavior. One difficulty with
public apologies is that it can be difficult to distinguish between a sincere expression of
regret and an apology performed for the sake of reputational rehabilitation.

For example, the Talmud relates a story in which a slaughterer was caught selling non-
kosher meat. R. Nahman disqualified the individual and fired him from his position. R.
Nahman later saw the slaughterer grow out his hair and nails. R. Nahman interpreted this
gesture as a sign of public penance and wanted to reinstate the slaughterer. Rava, however,
cautioned R. Nahman, “perhaps he is only pretending” (Sanhedrin 25a).

Indeed, the passage goes on to cite R. Idi b. Avin’s criteria that in order to demonstrate
authentic repentance, the slaughterer would have to go to a place where he is unknown,
and either return a lost object of value or disqualify his own valuable meat (Sanhedrin 25a).
In other words, the way one repents for a sin motivated by greed is to not repeat the sin by
personally accepting a financial loss in the course of following a commandment.

Similarly, R. Yehudah says that a “ba’al teshuvah”—someone who is considered to have

repented—is defined as someone who refrains from repeating the sin when faced with the
opportunity. R. Yehudah’s standards are more exacting than those of R. Idi b. Avin, in that
R. Yehudah indicates that repentance is limited to a case in which one avoids sinning with
the same woman, in the same scenario, and in the same place (Yoma 86b).

Defining a ba’al teshuvah is important because, according to rabbinic law, once someone
has repented it is forbidden to bring up that person’s past transgressions, which would
violate the prohibition of “oppressing with words” (Lev. 25:17 per M. Bava Metzia 4:10).
Not every offender repents, but for those who have repented, Jewish law would also
prohibit holding that person’s past behaviors against them.

This, of course, assumes that forgiveness is sincere and not coerced through guilt or
intimidation. Furthermore, even if one does not remind a repentant abuser of past

76
transgressions, the risk of recidivism must be evaluated, particularly regarding child abuse.
As noted earlier, rabbis may be fooled by superficial gestures of repentance and may
mistakenly believe an abuser no longer poses a risk. We find two such examples in the
cases of R. Moti Elon and R. Mordechai Gafni, both of whom benefited from rabbinic
support. It is not my place to suggest how one calculates the risk of recidivism or the
efficacy of treatment, but it must be addressed by those who have professional expertiseto
evaluate specific situations.

Conclusions and The Deus Ex Machina of Jewish Justice

The sources above demonstrate that there are different approaches in the rabbinic tradition
for how to respond to cases similar to those associated with #MeToo. We find precedent
for emphasizing due process in order to avoid the risk of punishing an innocent person, as
well as precedent for relying on extra-judicial criteria to ensure the guilty do not go
unpunished or, worse, remain free to victimize others.

However, it is worth keeping in mind that there is no perfect formula which ensures that
all guilty —and only the guilty—will be punished appropriately. Due to flaws of human
biases, lack of evidence, or outright corruption, all judicial systems defined and enforced
by humans are limited in their capacity to achieve perfect justice.

Despite the inevitable flaws in our judicial systems, the Torah nevertheless obligates people
to establish justice,[12] which means we attempt to achieve justice to the best of our ability.
At the same time, rabbinic Judaism’s vision of justice is predicated on faith in God to
correct the limitations of human justice. This may take the form of God punishing people
for transgressions. For example, some deaths are attributed to God punishing an individual
for having committed murder (M. Avot 2:6, Sanhedrin 37b).

A person may also be judged in the afterlife for sins committed in this world
(M. Sanhedrin 10:3). In the words attributed to R. Eliezer, “If justice is carried out [on
earth] below there will be no further judging [in heaven] above, but if there is no justicebelow
there will be judging above” (Deut. Rabba 5:5). Humans are obligated to seek justiceto the
best of our ability, and we may not correct one injustice by causing another. Rather,it is up
to God to “balance the scales.”

Having faith in God is praiseworthy in religion, but it is a deeply unsatisfying solution for
victims in a secular society. For this reason alone I would be wary of imposing religious
analogs onto secular society. However, those who look to the Jewish tradition for
precedents regarding how to approach contemporary cases will find many approaches from
which to choose. Those who advocate for strict due process have sources on which to rely,
as do those who rely on lesser standards of believability for taking action against someone.
My point is that the rabbinic tradition struggled with defining and executing justice, and
those who look to the Rabbinic tradition for answers will find conflicting directives. In
short, there is no simple solution. Regardless of the approach one chooses to take, it is
imperative that people are “deliberate in judgment” (M. Avot 1:1). There is too much at
stake to do otherwise.

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[1]
Abusers and victims can be of any gender. However, since the overwhelming majority of sexual assaults reported are
by men against women, my formulation assumes that men would be the abusers and women the victims. Note that
statistics only reflect what is reported, and may not accurately reflect reality.
[2]
Note that the judicial system does not always work as intended. Judge Alex Kozinski of the ninth circuit wrote
a scathing review of the criminal justice system, though two years later he himself resigned his position due to allegations
of sexual misconduct. The point remains that if the judicial system with its rules and procedures can make mistakes, then
social enforcements without the protections of such rules or appeals are more likely to err on either side.
[3]
Halakhah does not take loss of income lightly. Deut. 24:6 and Shavuot 45a equate one’s wages with one’s “life,” not
unlike the English term “livelihood.”
[4]
Judge William Blackstone wrote in 1753, “for the law holds that it is better than ten guilty persons escape than that
one innocent suffer.” This eventually became known as “Blackstone’s Ratio.” Maimonides expressed a similar sentiment
with a different ratio, saying “It is better to acquit one thousand murderers than it is to kill one innocent” (Sefer ha-
Mitzvot Negative Commandment 290). For a wonderful history of this idiom and the variations of how many guilty are
weighed against one innocent, see Alexander Volokh’s “n Guilty Men.”
[5]
Jewish law designates five categories of payment for personal damages: the damage, pain, lost wages, healing, and
embarrassment (M. Bava Kama 8:1). The Talmud discusses at length how each of this categories is calculated (Bava
Kama 83b). Jewish law also includes punitive fines in certain cases, but not all courts have the authority to impose them.
See Sanhedrin 31b.
[6]
When one violates multiple violations with the same action, the general rule is only the most severe punishment is
applied. See, for example, Ketuvot 33b.
[7]
One of the rabbinic critiques of the gentile court systems of their day was that they expropriated money on the basis
of a single witness, as opposed to the two required by Jewish law. See Bava Kama 113b-114a.
[8]
The Talmud also cites a concern for a judge inappropriately comparing one case to another, as opposed to consulting
a teacher for the proper answer (Yevamot 109b).
[9]
Capital convictions normally result in one of four methods of execution: stoning, burning, decapitation, and
strangulation (M. Sanhedrin 7:1).
[10]
A mamzer who is a Torah scholar takes precedence over an ignorant High Priest (M. Horayot 3:8). A student returns
the lost object of a teacher before a father because “his father brought him into this world, [while] his teacher who taught
him wisdom brings him to the world to come” (M. Bava Metzia 2:11).
[11]
However, it is possible that a person’s recollection of traumatic events may become distorted over time.
Inconsistencies may not imply falsehood, but they do make it difficult to rely on such reports.
[12]
Per the Noahide commandments, even gentiles are required to establish laws (Sanhedrin 56a).

Judge Over Yourself

78
Rabbi Yisroel Ciner writes:13

“Shoftim v’shotrim tetane l’cha {Judges and officers you shall appoint for yourselves} in all
the gates that Hashem has given you for your tribes, and they shall judge the nation with
righteous judgment. [16:18]”

The Kli Yakar points out that the passuk {verse} would have been more consistent had it said:
“Judges… you shall appoint for yourselves… that Hashem has given you… and they shall judge
you,” as opposed to “and they shall judge the nation.”

He explains that the passuk is addressing the powerful people of the community who are often
involved in appointing the judges. Be sure to appoint shoftim {judges} who will not show
preferential treatment to anybody–even to those whom they owe their positions to.

That is the meaning of “Shoftim v’shotrim tetane l’cha {Judges and officers you shall appoint for
yourselves}”–make sure that they will be judges over you, the appointees. If you have done that,
you can then be assured that “they shall judge the nation with righteous judgment”–that the general
populace will receive just rulings.

The Talmud [Moed Katan 17A] offers some parameters as to the type of person one should choose
to be the judge. Rabi Yochanan taught: If the Rav is like an angel of Hashem, then seek Torah
from him.

In what way is this Rav/Judge meant to be similar to an angel?

The Darchei Mussar explains that angels are described as not turning to either side as they move.
This means that they do the will of the Creator without taking into account any ‘outside’ opinions.
They go straight toward the pure fulfillment of Hashem’s will.
That is an essential quality for judges. When a situation is brought before them, they must ignore
all outside factors and decide what is the clear, pure will of Hashem as presented to mankind
through the Torah. No other factors can be taken into consideration.

The story is told of a young man who was appointed to be the Rav of Hamburg. On the very first
day of his arrival in town, he was approached by a woman who had a claim against one of the most
prominent members of the community. The Rav, weary from his trip, asked if he could first get
settled in and deal with the matter the next day. The woman however would not be put off, giving
a number of reasons why it had to be done that day.

The young Rav called his shamesh {attendant}, instructing him to summon that wealthy individual
to a Din Torah {Court based on Torah Law}. The shamesh seemed to be rooted to his place. “How
can I summon this person to come before the Rav? The whole town trembles before him!” he
thought to himself. He began to voice his concerns but the Rav refused to be intimidated. “Go and
summon him immediately!” he told the shamesh.

13
https://torah.org/torah-portion/parsha-insights-5761-shoftim-2/

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The shamesh got as far as this man’s door but didn’t have the nerve to knock. He began to pace
outside in the yard, hoping that the man would notice him and ask what he had come for. After a
short while the man left his house and saw the shamesh outside. When the shamesh finally stuttered
out an explanation, he curtly told him to tell the Rav that he’ll come at his convenience.

The shamesh relayed the response to the Rav who sent him back with the following message: “The
woman is not willing to wait and he therefore must come today.” When the man heard this message
he became furious. “Tell the Rav that he clearly does not yet know who who is over here. I run
this community while he is only a guest here. If I said I’ll come when I can, then I’ll come when I
can!”

When the Rav heard this message he rose like a lion. “You tell him that if I say that he must come
today then he must come today! Otherwise I will have him excommunicated!” The shamesh
begged him to send someone else with this last message but the Rav refused.

With no other option, the shamesh went this third time to the man. He literally delivered the
message and then ran from the house.

A short while later this man came before the Rav with a big, warm smile. “Mazel tov! You have
truly earned your position in this town!”

He explained that the community leaders were concerned that such a young Rav would not be able
to stand up to the pressures of leading a community filled with such prominent and powerful
people. This woman was sent with the pretense of a Din Torah as a way of determining that the
Rav could stand up to the pressures. By focusing only on the will of Hashem, the Rav showed
himself worthy and capable of this position.

Rav Moshe Feinstein offers another explanation for this passuk. “Shoftim v’shotrim tetane l’cha”–
every person must be a judge over himself. To be sure that we are doing the right things. To avoid
rationalizing and making excuses. To ignore the pressures of what those around us might be saying
and to do what we know is right.

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 The Maidservant of Rabbi Judah ha-Nasi (second century CE)
The maidservant of Rabbi Yehuda HaNasi was never given a name in the Gemera despite her
expertise, in languages and Halacha, and the large respect shown to here by the Rabbi's in the
Tannaim period. It leads to a very perplexing question Why did Rabbi Yehuda HaNasi make sure
to include stories of her wisdom and greatness but fail to give us her name?14

She was an expert in languages and when there were words in the Gemara that the Rabbis did not
know the meaning they would come to her. A story is told in the Talmud Yerushalmi that a group
of Rabbis traveled to ask three questions. The first question was who gets honored when visiting
a dignitary? Should the oldest person in a group enter first or the younger but wisest person?

The second two questions pertain to the meaning of the words serugin and chaluglogos. When they
came to the house she perceived their questions and told them to enter the house from oldest to
youngest as they should. Then when they started to enter intermittently she asked them, why they

14
https://www.facebook.com/Nishmat.Torah/posts/the-maidservant-of-rabbi-yehuda-hanasi-was-never-given-a-name-in-the-
gemera-desp/2282383505188157/

81
were entering serugin, serugin? One of the Rabbis dropped a bag full of pulsane plants and she
asked him why he was scattering his chaluglogos around?

In another story she passed a man beating his adult son. So she declared that he must be
excommunicated (put in cheirem) because he was putting a stumbling block before the blind by
tempting his son to beat him back. Not only did the Rabbis uphold her excommunication but out
of respect for her they didn't lift the man out of cheirem for three years.

The inscription of Rabbi Gamaliel which identify with the son of rabbi
Yehuda Hanassi Rabban Gamaliel beRabbi

Tal Ilan writes:15

In the Jerusalem Talmud one finds two references to a female slave of Rabbi (i.e., Rabbi Judah ha-
Nasi, editor of the Mishnah). The first is a witty story, in which the maidservant bests a would-be
rapist by undermining his assumptions about the halakhic similarity between slaves and beasts (JT
Berakhot 3:4, 6c). Another episode suggests that Rabbi’s maidservant spoke a good, rich Hebrew,
as did all members of Rabbi’s household. Thus, she was able to explain to Rabbi’s students
difficult biblical words, whose meaning eluded them (JT Megillah 2:2, 73a and also in

15
https://jwa.org/encyclopedia/article/female-personalities-in-babylonian-talmud#pid-16079

82
JT Shevi’it 9:1, 38c). It is not obvious from these stories that the same maidservant is intended in
both cases.

It does seem, however, that for the rabbis of the Babylonian Talmud, this maidservant fired the
imagination. She is mentioned no less than eight times, in most cases in clear Babylonian
inventions. For example, one tradition relates how Rabbi’s maidservant once declared a ban of
excommunication on a man whom she observed beating his son. The rabbis duly observed this ban
(BT Mo’ed Katan 17a). This story makes Rabbi’s maidservant into a sort of rabbinic authority.
Yet it is clearly a reworking of a story found in the Jerusalem Talmud about an anonymous
maidservant who declared such a ban on a teacher beating a pupil. There is no indication that this
ban was ever observed (JT Mo’ed Katan 3:1, 81d).

Other examples of her importance are her role as a food taster in Rabbi’s household(BT
Shabbat 152a), her actions serving as a legal exemplum for women’s ritual immersion(BT
Niddah 66b) and a story which shows her great compassion for her suffering master on his
deathbed (BT Ketubbot 104a). One tradition uses Rabbi’s maidservant as a clear example of the
fact that women can also engage in “wisdom language” (BT Eruvin 53b). Her gender role in this
tradition is underscored by the fact that it is told in order to counter other stories demonstrating
women’s stupidity. Ironically, the language she uses in this tradition is Aramaic rather than the
Hebrew for which she became famous in the Jerusalem Talmud. In fact, it is interesting to note
that in the Babylonian Talmud the female family member with whom Rabbi is most often
associated is his maidservant.

In sum, it appears that a Hebrew-speaking maidservant, invented by the Jerusalem Talmud in order
to demonstrate how thoroughly Hebraized the house of Rabbi was, fired the imagination of the
Babylonians, who made her into a paradigm of feminine wisdom.

83
 Maid of Ludomir
Ada Rapoport-Albert writes:16

Hannah Rachel, the Maid of Ludmir, was committed to prayer and religion from a young age, but
a series of traumatic events motivated her to begin practicing male ritual Hasidic observances. She
well renowned for her miracle-granting abilities, but as her popularity grew, so did the displeasure
of male Hasidic leaders, who wanted her to get married. She acquiesced and was married briefly
but quickly divorced her husband, and she subsequently spent the rest of her life in Jerusalem.
Although the Maid of Ludmir was able to hold a position of religious power in the Hasidic
community without the help of powerful Hasidic men in her family, her story ultimately upholds
gender expectations.

The Maid of Ludmir (also spelled Ludomir) was a semi-legendary figure, reputed to have been
one of the few Women in Hasidism who functioned as a fully-fledged spiritual master (Zaddik or
Rebbe). Most of the information about her originates in oral traditions of “old women in

16
https://jwa.org/encyclopedia/article/ludomir-maid-of

84
Volhynia,” first collected and published in 1909 by the historian Samuel Abba Horodezky (1871–
1987). These were subsequently subjected to his own as well as others’ elaborations and
expansions, which appeared in a variety of popular-historical, belletristic, journalistic- and
memoiristic works. Significantly, the hagiographical literature of nineteenth century Hasidism
makes no mention whatever of her, nor is any mystical or ethical teaching attributed to her in other
genres of hasidic writing. She is, however, mentioned briefly in an 1883 satirical work by
a maskil and, following the publication of Horodezky’s reports, in a handful of twentieth-century
hagiographical anthologies.

Early Life

Hannah Rachel, the Maid, was the only daughter of Monesh Verbermacher, an educated and well-
to-do Jew in the Volhynian town of Ludmir (Vladimir-Volynskiy). From an early age she was
distinguished not only because of her beauty but also—unusually for a girl—by dint of her ardor
in prayer and remarkable aptitude for scholarship. Her betrothal to a beloved childhood playmate,
which entailed the customary separation of bride and groom until the wedding, distressed the Maid
and led her to withdraw from society.

Hanna’s distress was exacerbated by the sudden death of her mother, following which she became
a recluse, never leaving her room except to visit her mother’s grave. On one of her visits to the
cemetery she fell into unconsciousness, which was followed by a prolonged and mysterious illness.
When she recovered, she claimed to have been given “a new and elevated soul.” She broke off her
engagement and declared that she would never marry, having “transcended the world of the flesh.”

Commitment to Religion and Marriage

From then on, Hanna adopted the full rigor of male ritual observance and absorbed herself, like a
male pietist, in intense study and prayer. She became known as the “holy Maid” or the “Virgin”
of Ludmir and acquired a reputation for miracle working. Men and women, including rabbis and
scholars, flocked to the bet midrash in Ludmir which functioned as her hasidic court. She would
grant blessings on request and deliver her weekly hasidic teaching at the third Sabbath meal, as
was customary among the male Zaddikim.

While her popular following grew, the male leadership of the movement disapproved, viewing her
activities as a pathological manifestation of the powers of evil and impurity. Pressure was put on
the Maid to abandon the practice of Zaddikism and to resume her rightful female role in marriage.

Following the personal intervention of Mordecai of Chernobyl (1770–1837)—the most

eminent Zaddik of the region—she reluctantly agreed to marry, but the marriage was never

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consummated and soon ended in divorce. She married again but divorced once more, apparently
remaining a “maiden” to the end of her life. However, her marriages did have the desired effect of
putting an abrupt end to her career as a Rebbe. She eventually immigrated to the Holy Land, a
remote corner of nineteenth-century hasidism. Here, as is almost certainly confirmed by archival
documentation from the 1860s and 1870s, she spent the last years of her life in Jerusalem as a
childless widow affiliated to the Volhynian hasidic kolel (a group of Ashkenazi Jews in Palestine,
from one country or district, whose members received funds from their countries of origin).

Legacy

The Maid of Ludmir was exceptional among the cluster of women reputed to have exercised
charismatic authority within the hasidic world of their day. Unlike most of them, she was not
related by family ties—as mother, daughter, sister, or widow— to any of the illustrious male
Zaddikim. She could not, therefore, draw on the associative authority which some Jewish women
were able to derive from their connection to distinguished male relatives; her powers wereentirely
her own.

Nevertheless, while her career is often celebrated as a pioneering “feminist” success, the very
terms in which the Maid tradition has been preserved present her case as an instructive failure. It
serves precisely to reinforce, rather than undermine, the gender boundaries she attempted to cross.

The phenomenon of a spiritually empowered holy virgin, so familiar to the wider Christian
environment of hasidism, was alien to the Jewish tradition, which had always prized, albeit within
limits, the practice of sexual abstinence by some men, while greeting with suspicion and ascribing
no value to the adoption of celibacy by women. The anomaly of the celibate female Rebbe was
therefore perceived as an aberration of nature and a social deviation which the hasidic leadership
was quick to suppress. Only in the twentieth century, under the impact of modern feminism and
the egalitarian elements of Zionist ideology, could the Maid of Ludmir tradition present itself as
an inspirational model for national revival and proof of the alleged eradication of gender
boundaries in hasidism.

Bibliography

Deutsch, Nathaniel. “New Archival Sources on the Maiden of Ludmir.” Jewish Social Studies 9:1 (2002): 164–172.

Deutsch, Nathaniel. The Maiden of Ludmir: A Jewish Holy Woman and Her World. Berkeley: 2003.

Horodezky, Shmuel Abba. “The Ludmir Maid” (Russian). Eveiskaya Starina 1:2 (1909): 219–222.

Horodezky, Shmuel Abba. Hasidism and the Hasidim (4 vols.) (Hebrew) (second edition, Tel Aviv: 1943), vol. 4, 67–71.

86
Rapoport-Albert, Ada. “On Women in Hasidism, S. A. Horodezky and the Maid of Ludmir Tradition.” In Jewish History. Essays
in Honour of Chimen Abramsky, edited by Ada Rapoport-Albert and Steven J. Zipperstein. London: 1988.

This source contains additional bibliographical references in note 2, and an expanded version in Zaddik and Devotees: Historical
and Sociological Aspects of Hasidism (Hebrew), edited by David Assaf. Jerusalem: 2001.

Rapoport-Albert, Ada, and Deborah Greniman. Women and the Messianic heresy of Sabbatai Zevi: 1666-1816. Littman Library
of Jewish Civilization, 2011.

Winkler, Gershon. They Called Her Rebbe: The Maiden of Ludmir. New York: 1991.

View down Farna Street, the main thoroughfare,

Volodymyr Volyns’kyi, 1920s

The Maid of Ludomir: A Woman Rebbe?

ELI KAVON writes:17

While the debate rages on regarding the Modern Orthodox ordination of women rabbis and as
controversy swirls around the “Women of the Wall,” it is important to investigate the life of
Hannah Rachel Webermacher, known as the “Maid of Ludomir.” Hannah Rachel is not a harbinger

17
https://www.jpost.com/blogs/past-imperfect-confronting-jewish-history/the-maid-of-ludomir-a-woman-rebbe-454009

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of women rabbis or women’s prayer groups but she is an example of a woman who achieved great
power and a great following and, while not a Rebbe, fulfilled many of the tzaddik’s functions
during her fascinating life.

Hannah Rachel was born in Ludomir in Ukraine around 1805. Hasidism was in its early stages and
the charisma of the individual rebbe had not yet been supplanted by the reality of Hasidic dynasties
and the institutionalization of the Hasidic world. This young woman was known early on for her
piety and her wearing of the fringes of the tzizit. She studied diligently, mastering Midrash,
Aggadah, and the ethical works of Jewish tradition. She had been promised a young man to marry
earlier in her life but rejected this match and retreated into a secluded life of meditation and the
recitation of Psalms. After undergoing a serious illness, she experienced a religious ecstasy that
led her to don a tallit and to don tefillin during her weekday prayers. She actually wore the tallit
and phylacteries all day. After the death of her father, she recited the Kaddish prayer publicly in
the synagogue, a practice unusual for women at the time.

In time, Hannah Rachel’s piety and her knowledge garnered her a following. As described by
scholar Michael Kaufman in his study of women in Jewish tradition, Hannah Rachel’s Hasidim
built a synagogue for her and a small apartment adjoining it. She first began to teach women alone
but eventually men began attending her lessons. For the third Sabbath meal before the end of
Shabbat, Hannah Rachel would deliver a shiur on Hasidic thought, mysticism, and ethics. Her
followers were both women and men.

Hannah Rachel’s fame spread and she became known as the “Maid of Ludomir,” dedicated to
Jewish spirituality and ethics yet unmarried. Jews, including teachers and rabbis, flocked to
Ludomir to receive lessons and advice from a woman who was not a rebbe but, in many ways,
fulfilled the role of the tzaddik as the intercessor between God and the Hasid. She blessed her
visitors and provided counsel to those who followed her in much the same way as any other Rebbe.
Hannah Rachel eventually married at the late age of 40 but the marriage ended in divorce, likely
because of the Maid of Ludomir’s obsession with piety and her unique role and personality. After
this, her popularity declined. Yet, she now moved on to a new mission, to immerse herself in
Kabbalah and by doing so bring the Messiah. She continued this mission in the last years of her
life after making Aliya to Eretz Yisrael. She died in 1892.

While biographies have been written about this unusual women, she has been forgotten by most
of the Jewish world. Her charisma and piety are an inspiration and serve as a model for Jewish
women and men today. Her story raises many questions about the role of the Jewish woman in the
public domain of Jewish life and as teachers of Torah to the Jewish masses. Her life remains a
fascinating one. She was ahead of her time.

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 THE WOMAN REBBE
Susan Nanus writes:18

18
https://resources.finalsite.net/images/v1615867885/wbtlaorg/nqksobcx77lmspp5ck5u/The-Woman-Rebbe-Hannah-Rochel-
Werbemacher.pdf
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 THE MAIDEN OF LUDMIR

Dr. Pearl Herzog writes:19

On 22 Tammuz/June 11, 2004, a hakamas matzeivah took place on Har HaZeisim at the newly
discovered gravesite of Chana Rochel Webermacher (1806–1888). It was the 116th yahrtzeit of
the “Ludmirer Moid” or Maiden of Ludmir as she was also known.

The story of the only chassidish female who behaved like a rebbe — fiering tisch
accepting kvittlach and performing miracles — but didn’t belong to any of the chassidic dynasties
has generated many articles books and plays in countries around the world. From these many
accounts it is possible to piece together a picture of one of the most fascinating lives of the last
century.

A Rebbe’s Blessing

Chana Rochel’s story begins in the shtetl of Volodymir Volhynia (then Russia today northwestern
Ukraine). Called Ludmir by its Jewish inhabitants the shtetl is associated with the Tosfos Yom
Tov Rav Yom Tov Lipman Heller who served as rav there from 1634–1643 and the Noda
B’Yehudah Rav Yechezkel Landau who attended yeshivah there in the 18th century. Another

19
https://mishpacha.com/the-maiden-of-ludmir/

99
prominent citizen of Ludmir was the founder of the Karliner dynasty Rav Shlomo HaLevi who
settled in the town in 1786.

Munish Webermacher and his wife a wealthy couple living in Ludmir had been childless for over
ten years when they were given a blessing for children by a chassidishe rebbe. Although all sources
agree that Munish was a chassid of the Maggid of Chernoble Rav Mordechai Twersky they differ
as to which rebbe gave the brachah that produced the Webermachers’ brilliant red-haired daughter.
Since there is no documentary evidence regarding this fact — most written accounts were
published decades after her birth — some historians of Chassidus such as Shmuel Abba
Horodetzky a grandson of Rav Aaron of Chernoble and writers such as Yochanan Twersky another
scion of the Chernobler dynasty and author of a Hebrew novel about the Maiden of Ludmir
attribute the blessing to the Maggid of Chernoble.

On the other hand writers Menashe Unger a brother-in-law of the late Bluzhever Rebbe and
Ephraim Taubenhaus a descendant of the Maggid of Mezeritch who wrote much about the Maiden
of Ludmir claimed it was the Seer of Lublin who told the Webermachers that he foresaw a child
being born to them within the year who was going to have a very lofty soul.

Chana Rochel was unlike other children who liked to play. She was always hungry for knowledge
and begged to learn Torah. Her father hired private tutors for her but tried to dissuade her from
learning Gemara. When she continued to beg him to teach it to her he finally humored her and
permitted her to learn hoping she would find it too difficult and lose interest. Instead she became
an outstanding student and became renowned as a “talmid chacham.”

The awe-inspiring kavanah she exhibited when she davened three times a day set her apart as an
unusually holy girl. When she reached bar mitzvah age she insisted on putting on two sets
of tefillin those of Rashi and Rabbeinu Tam in private. Her father who was very upset with her
behavior took her to his rebbe hoping the Maggid of Chernoble would dissuade her from behaving
like a male.

However, the Rebbe was impressed with her quotes about Beruriah and other Jewish women who
were very learned and pious. He told her and her father that she could continue to put on tefillin
since many pious women, such as Michal, daughter of King Shaul and wife of King David, did so.
But the Rebbe did make Chana Rochel promise to marry, when the time came, so that she would
not lose sight of her role as a woman. This visits emboldened Chana Rochel to put on the two sets
of tefillin in public and her behavior drew curiosity seekers who viewed her as odd.

Chana Rochel eventually met a boy from a simple family who she wanted to wed. According to
one account, it was a yeshivah student who would participate in essen tag at her home.
Essen tag was the custom where yeshivah students would eat each day at a different host family
since there was no yeshivah dining room. In another account, Chana Rochel met a Cantonistin a
forest not far from her home who was hiding from the Russian army that had conscripted him.
Whoever it was, Chana Rochel’s father was thrilled that she was finally acting like a normal young
woman and agreed to the match. However, since she was a chassidish girl and the custom was for
the kallah and chassan to not see each other again until the wedding, she was told not to meet with
her chassan during the engagement period.

100
A Fall That Was an Ascent

Then her mother passed away. Feeling emotionally vulnerable and extremely lonely, without her
mother or her chassan to speak to, Chana Rochel went to the Ludmir cemetery and cried her heart
out for several hours at her mother’s grave. When it became dark, she started to run out of the
cemetery. She tripped over a stone and collapsed. She was in a coma for several days. When she
awoke, her behavior was even stranger than it had been prior to the fall. She was suddenly able to
quote many Torah sources by heart, even though she had never learned them. She told her father
that while she was deep in a coma, her soul had gone up to Shamayim and another soul had come
down and entered her body. She also claimed she had had a mystical vision in which she was
commanded to now devote herself completely to Hashem.

According to a number of accounts, the place where she tripped was the gravesite of Mashiach ben
Yosef, Rabbi Shlomo HaLevi Karliner. What is fascinating is that she eventually passed away on
the 22nd day of Tammuz, the same date as the Karliner Rebbe’s yahrtzeit.

Believing that with her new soul she could not devote herself to a husband, as she now had to
dedicate herself completely to Hashem, the “Moid of Ludmir,” as she was becoming known, broke
off her engagement. She closeted herself in her home, where she engrossed herself in seforim.

Her father died heartbroken, since he had never brought her under the chuppah.

Meanwhile, Chana Rochel was slowly acquiring a reputation that she had ruach hakodesh. She
once identified meat being sold by the local frum butcher as unkosher just by looking at it. At first
no one believed her, but she insisted. When an investigation was made, it was confirmed that the
meat at the butcher had been switched and was indeed treif.

Slowly but surely, more and more people sought her out for her sage advice. She developed a
following and became known for healing sick people and providing amulets and yeshuos. Unlike
other rebbes, she never took any pidyonim (financial redemption) for the kvittlach she was given.

The Female Rebbe

Chana Rochel’s father had left her a sizable inheritance, which she used to support herself and
build a beis medrash that was attached to an annex where she lived, studied, and davened. The red
brick building was situated on the corner of Kovel and Farna streets and was unlike most of the
other buildings in town, which were made of lumber from the neighboring forest. The building
became known as the Gornshtibel, since the beis medrash was situated on the second floor.
The shtiebel was later used as a shul for Rachmistrivka (a branch of Chernoble) chassidim. It was
destroyed during the Holocaust, and an apartment building now stands in its place.

Chana Rochel “fiered” a shalosh seudos tisch behind a curtain and would deliver a sermon every
Shabbos. She did not speak to men directly, but from behind a door in another room. Even though
she was not married, she covered her hair and wore a white tichel. A woman that she employed
provided her with meals and did her laundry.

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At first it was only the very poor, who could not afford to give a pidyon to other rebbes, and the
elderly, who could not travel far, that came to the Maiden of Ludmir for salvation. She was
miraculously able to name all the visitors, even complete strangers. After her good name spread
all over Russia and Poland, young and wealthy people also made the trip to her shtetl.

According to historian Horodetzky, even rabbis and learned men came to verify what they had
heard about her, as well as seek her wise counsel and hear her Torah. A writer in Pinkas Ludmir,
a book written in 1962 to commemorate the history of the town, uses the term “admor,” which
stands for adoneinu, moreinu, verabeinu (our master, teacher, and rabbi) to describe her.

In the 1911 Russian language journal Evreiskaia Starina, Mark Klaczko added that not only did
the Maiden of Ludmir receive petitions, but she also traveled to neighboring cities and towns where
she delivered sermons in the local shtieblach. One place she went to was Starokonstantinov, where
she gave a sermon to the local women on a Shabbos. According to Klaczko, old people in
Starokonstantinov “until this day tell tales about her visit there.”

Bubbe Maisehs?

Nathaniel Deutsch, author of a well-researched 300-page book entitled The Maiden of Ludmir: A
Jewish Holy Woman and Her World (University of California Press), traveled to Ludmir, Lutsk,
St. Petersburg, Moscow, Jerusalem, and other cities searching for historical material relating to the
Ludmirer Moid. Deutsch’s interest in the Maid of Ludmir had been roused when he came across
Gershon Winkler’s novel They Called Her Rebbe, and he spent the next six years researching her
life. He interviewed as many people as he could find who were descendants of Jews of Ludmir
who could give him more information about the Maiden of Ludmir, as well as descendants of Jews
in Jerusalem who may have known her.

The foreword of his book was written by the late Janusz Bardach, a world-renowned surgeon in
Poland who survived seven years in the Soviet gulag and who claimed to be a great-great-grandson
of the Maiden of Ludmir. Deutsch had initially contacted Bardach after he read the latter’s memoir
Man Is Wolf to Man: Surviving the Gulag, in which Bardach mentioned that he had livedin Ludmir
until the age of 21. Deutsch asked Bardach if he had ever heard of the Maid of Ludmir,in the hope
that Bardach may have heard about her from his parents or grandparents. When Bardach told him
that she was his great-great-grandmother, Deutsch writes he thought to himself“bubbe maiseh”
(old wives’ tale); according to all the legends and articles he had come across, there had been no
mention of the Moid of Ludmir ever having had a child.

Chana Rochel Webermacher had married several years after her father’s death because of pressure
from the Chernobler Rebbe, who had come to Ludmir to visit her. The Rebbe had been bombarded
by requests from people who objected to her role as a rebbe and who believed that if she married,
she would “stop this nonsense.” These people knew that she respected the Chernobler Rebbe, and
he was one person she would listen to.

The Rebbe reminded Chana Rochel of her promise to him to marry one day. Chana Rochel
acquiesced and did get married. According to some accounts the chassan was a sofer, while
according to others he was her gabbai; both men were supposedly much older than her. However,

102
most of the legends relate that she got divorced several days after her wedding. The majority of
the tales say that she requested the divorce, although one source claims that her new husband
wanted the divorce; he said the Shechinah was hovering around her and he was frightened of it.

When Deutsch asked Janusz Bardach to tell him what he had heard about his great-great-
grandmother, Bardach related that he was told that she fell into a coma after visiting the local
cemetery with some friends. She fell and hit her head on a stone, suffering a concussion so severe
that her parents thought she would die. Suddenly she sat up and began to recite pieces of Torah as
if she knew them by heart. It is interesting to note that according to Bardach, her mother was still
alive when she visited the cemetery.

He also related that his grandfather, a descendant of one of the oldest chassidic families in the
town, had built a shtiebel on Sokalska Street dedicated to the Ludmirer Moid, and as a child he
had attended services there. His grandfather owned the two-story brick house on Farna Street in
which, according to his grandparents, the Ludmirer Moid was born and raised. His grandmother
took him to see the house, which was then owned by a pharmacist named Tabak, and showed him
the room where the Ludmirer Moid would learn and daven.

When Chana Rochel got married, she shaved her head according to chassidic custom and wore a
wig. But after her head was shaven, Bardach said, she lost her knowledge of the Torah and her
influence waned.

This information is in accordance with many of the accounts regarding Chana Rochel’s role after
her marriage. They claim she felt she lost her ruach hakodesh after her marriage and was upset,
and that is why she initiated the divorce.

Nathaniel Deutsch writes that after having spoken to Bardach he was perusing one of Menashe
Unger’s unpublished manuscripts in YIVO’s library and came across a tradition that Unger had
omitted in his published work — and which made Deutsch almost fall off his chair. According to
Unger, there were two pious young men called Meir and Shlomo Bardach, whose father used to
visit the Seer of Lublin. A match was proposed between Shlomo and the Maiden of Ludmir since
it was said about Meir that “he learned with madness and Shlomo with intelligence.” Menashe
Unger writes that after the Maiden of Ludmir met Shlomo, she described him as being “as pure as
white wool.” Shlomo however didn’t want to hear of the match because, in his opinion, it wasn’t
good to confuse a rabbi with a woman; each was a category of its own and should not be brought
together in the same individual.

When Nathaniel Deutsch called Bardach and asked if he knew of any relatives called Meir and
Shlomo Bardach, Bardach answered, “Meir was my great-great-grandfather, and Shlomo was his
brother. They started a fur business together, which my grandfather Motel took over.”

Apparently, the Maiden of Ludmir married the other brother, and her grandchild seems to be
named after the Maggid of Chernoble.

Bardach also related that his great-grandfather, Chana Rochel’s child, became very sick, and she
made a promise to Hashem that if the child would be healed, she would travel to Eretz Yisrael and

103
live the rest of her days there. According to Bardach, she left her child in Ludmir. But since the
Maiden of Ludmir may have been 50 when she moved to Eretz Yisrael, her son may have been an
adult when she made her promise, which is why he may have remained in Ludmir.

None of the written sources mention this child as an impetus for her move to Eretz Yisrael. Some
claim that she hoped she would get back her ruach hakodesh in Eretz Yisrael. While some accounts
say that she came with a husband, others claim she married again in Jerusalem.

A Jerusalem Legend

Deutsch writes that “Harabbanit Hatzadekket Chana Rochel from Ludmir” is mentioned in the
Montefiore census of Jerusalem of 1875. The census information states that she was 69 years old
and arrived there in 1859 and that her family consisted of one person. The census also indicates
that she was self-supporting, thanks to her inheritance, and didn’t have to work or accept charity
from the community.

Many Jerusalemites claimed to have known her. An old chassid named Yosef Akiba was a resident
of the Even Israel Jerusalem neighborhood established in 1874. “On her head she wore a yamperke,
an old Jerusalem bonnet,” he recalls, “and she lived on Hevron Street.”

Another Jerusalemite describes a shalosh seduos tisch that she would fier with 12 little challos.

Yet another person writes, “The Maiden of Ludmir used to hurry every day to the Western Wall
… her hands clutching a tallit and tefillin. Old women and men followed after her, to seek her
blessing.”

On Rosh Chodesh she would go with a large contingency to daven at Kever Rochel. She would
distribute charity to all who requested it.

Some women began to spread rumors that the Maiden of Ludmir had exorcised a dybbuk from a
young girl. When asked how she did it, she modestly replied that the girl had talked herself into
becoming ill and all she did was talk her out of her illness.

Chana Rochel was also depicted as a kabbalist and according to one tale she and an elderly
practitioner of Kabbalah Ma’asit decided to try to hasten the arrival of Mashiach. The plan was to
go to one of the caves outside Jerusalem, and they picked a “guard” to prevent them from
transgressing the prohibition of yichud. While she waited in the cave, an old white-haired man met
with the elderly kabbalist and engaged him in a long conversation. Finally, the Maiden of Ludmir
lost patience and left. The white-haired man, says the legend, was none other than Eliyahu HaNavi,
who kept the Maiden of Ludmir from bringing Mashiach.

The time of the Redemption had not yet come.20

20
Originally featured in Family First, Issue 365

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Volodymyr Volyns’kyi:

A city on the Luga River (a tributary of the West Bug), Volodymyr Volyns’kyi
(Pol., Włodzimierz; Yid., Ludmir; Latinized as Lodomeria) is the district center
of Ukraine’s Volyn’ oblast. An important regional center of Volhynia since the
tenth century, it passed in 1319 to the Grand Duchy of Lithuania, in 1569 to the
Polish–Lithuanian Commonwealth, and in 1795 to the Russian Empire.
Between 1921 and 1939 it belonged to independent Poland

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 Rabbinic Cancel Culture

R. Sari Laufer writes:[1]

Can we separate an artist from their art? A scholar from their scholarship? Can we appreciate a
wonderful book written by a terrible person? These are some of the deeply painful questions we
ask today, especially in the age of #MeToo and cancel culture, and the seemingly never-ending
revelations of terrible, dangerous, predatory behavior by many esteemed artists, teachers and
spiritual leaders.

In truth, these questions are perennial, and the rabbis struggled with the same dilemma. For them,
the question was: Can we separate Torah from the rabbi who shares it? Take, for example, this
story:

There was a certain Torah scholar who gained a bad reputation. Rav Yehuda said: What
should be done? To excommunicate him is not an option — the sages need him. Not to
excommunicate him is also not an option, as the name of Heaven would be desecrated.

The rabbis, it would seem, are in a bind. They would like to excommunicate this Torah scholar who
has purportedly behaved badly, both to distance themselves from him and to protect God’s
reputation. On the other hand, his Torah — his contribution to the discourse and tradition
of halakhah — is recognized to be of vital importance. If they lose him, they lose that as well. Rabbi
bar bar Hana offers a teaching from Rabbi Yohanan to help Rav Yehuda decide:

What is the meaning of that which is written: “For the priest’s lips should keep knowledge,
and they should seek Torah at his mouth; for he is a messenger (malakh) of the Lord of
hosts”(Malachi 2:7)? This verse teaches: If the teacher is similar to an angel (malakh) of the
Lord, then seek Torah from his mouth, but if he is not, then do not seek Torah from his mouth.

Using a play on words — malakh means both angel and messenger — this teaching comes to
explain the central dilemma of this discussion. Torah is not just about the words that are spoken by
its teachers, but also about the way those messengers behave in their everyday lives.

Recall, also, that this scholar's bad behavior was only rumored, and not proven. Despite the lack of
proof, Rav Yehuda is ready to excommunicate him, presumably for the sake of preserving the
reputation of Torah and its scholars. That can make us profoundly uncomfortable — the idea that a
person is exiled from the community without proof of guilt.

But likely for Rav Yehuda the calculation is that the greater good — in this case Torah — is more
important. He excommunicates the scholar.

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Sometime later, as Rav Yehuda is dying, a number of his fellow rabbis, including the one he
excommunicated, come to visit him. In that moment, reflecting on his life, Rabbi Yehuda expresses
no regret about his decision. In fact, he laughs. The excommunicated scholar responds:

Was it not enough that you excommunicated me, but now you even laugh at me? Rav Yehuda
said to him: I was not laughing at you; rather, I am happy as I go to that other world that I did
not flatter even a great man like you.

It’s a startling image — that on his own death bed, Rav Yehuda laughs in the face of the man whose
life he upended, perhaps even ruined. Given that he was initially unsure of what to do, Rabbi
Yehuda’s laughter seems, in this moment, to be his confirmation, to himself, that he made the right
decision.

This laughter, then, becomes the lesson: We cannot separate the scholar from their Torah. Rather,
we should only learn Torah from those who live Torah, only seek to learn values and morals and
communal behaviors from those who practice what they preach. The rabbis do not take
excommunication lightly, and we know that any loss of Torah is, for them, a grave loss. Rav Yehuda,
by example, reminds us that we must take seriously not only the teachings and words that are
spoken, but the teacher as well; for the rabbis, we must do as we say.

Rabbi Johnny Solomon writes:[2]

Our daf (Moed Katan 17a, and also repeated in Chagigah 15b) contains an oft-cited yet
nevertheless cryptic teaching about the qualities of the ideal Torah teacher.

Quoting from Malachi 2:7, Rav Yochanan asks: ‘What is the meaning of the verse ‫ִכּי ִשְׂפֵתי ֹכֵהן ִיְשְׁמרוּ‬
‫“ –ַדַﬠת ְותוֹ ָרה ְיַבְקשׁוּ ִמִפּיהוּ ִכּי ַמְלַא= ה' ְצָבאוֹת הוּא‬For a priests lips should safeguard knowledge, and
the people should seek teaching from his mouth, for he is an angel of the Lord of Hosts”?’. In
response, he answers: ‘if a teacher resembles an angel of the Lord of Hosts then seek Torah from
them, but if not, then do not seek Torah from them’.

Over the years, given the fact that I am a Jewish educator, I have collated a range of explanations
of this teaching. Here are three different interpretations which I hope you enjoy!

Basing himself on the Gemara and Rambam, the Lubavitcher Rebbe[3] explains that the ideal Torah
teacher should be someone who is able to overlook personal snubs, envy, and rivalry, and instead
be someone who publicly and privately exemplifies the ideal qualities of a Jew through acting with
modesty, through showing compassion, and though performing acts of kindness.

According to Rav Ezra Attieh,[4] the comparison between Torah teachers and angels relates to the
idea that angels are referred to as ‘stationary beings’ (see Zechariah 3:7) as compared to righteous
people who are described as ‘walkers’ (see Mishlei 20:7). While some people may teach Torah for
their own prestige and in order for them to gain honour, the true Torah teacher acts like an angel
because, rather than spending their time on their own learning, they use their time preparing their
classes and answering questions they receive from their students. In so doing they choose to remain
stationary for the sake of their students, and consequently, they resemble an angel of the Lord of
Hosts.

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Lastly, Rav Aharon Soloveitchik[5] explains that for a teacher to resemble an angel of the Lord of
Hosts, they need i) Consistency, ii) a sense of Divine mission and iii) an abundance of love. This
means that a teacher should live a life that is consistent with what they teach; they should consider
their involvement in Torah teaching not as a profession but rather as a Divine mission, and they
should convey - through their words and actions - a profound love of Am Yisrael.

A Maidservant With A Boy In A Larder by Pietro Ricchi

The Power of the Sages

Mark Kerzner writes:[6]
A particular Torah scholar was reported to have inappropriate relationships with young women.
Rav Yehudah discussed with his colleagues, "What are we to do? Excommunicate him? - But he is
a teacher of many students. Not to excommunicate? Covering up on him is a desecration of God's
name!" Rabbah told him in the name of Rabbi Yochanan, "Teacher should be like an angel, and if
not – do not study from him." Based on that, they excommunicated him.

A while later, Rav Yehudah was sick, and the Sages visited him. When Rav Yehudah saw the
excommunicated scholar with them, he laughed. The scholar said, "Not only you excommunicated
me, but you also taunt me!" Rav Yehudah replied, "I am not laughing at you, but at the thought that
when I die, I will be congratulated on not flattering even such a powerful and connected man like
you."
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After Rav Yehudah's death, the man came to rescind the excommunication. However, Rav Shmuel
bar Nachmani, who for years has not visited the assembly, happened to come on this day and said,
"How can we do it, seeing that Rav Yehudah did not make peace with him? Why, even a maidservant
of Rabbi Yehudah the Prince – when she excommunicated someone, the Sages observed this for
three years!"

The excommunicated man left the study hall, and a bee bit him on his male organ, and he died. The
burial cave of the pious did not accept him, but that of the judges – did. Why did it? – Because he
would change his dress and go to faraway places when transgressing so that people would not see
him misbehave openly.

And what was the story of Rabbi Yehudah's maidservant? – When she saw a man beating his grown-
up son, she excommunicated him.

By provoking his son to retaliate and violate the mitzvah of honoring the father, he was "putting a
stumbling block in front of a blind man."

[1]
Mytalmudiclearning.com
[2]
www.rabbijohnnysolomon.com
[3]
https://www.youtube.com/watch?v=JVFXZK6LDb8
[4]
Leader of the Generation - The Exalted Life and Times of Maran Rosh Yeshivat Porat Yosef The Great Gaon Rabbi
Ezra Attieh zt’l, pgs. 378-9 https://books.google.com/books/about/Leader_of_the_Generation.html?id=IA1XMwEACAAJ
[5]
Building Jewish Ethical Character pp. 11-18
[6]
https://talmudilluminated.com/moed_katan/moed_katan17.html

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