From Parsha to Halakha Pinchas: Legislating extrajudicial executions
Previously, on Parshat HaShavua…
The division between Parshat Balak and Parshat Pinchas is a strange one. Most of Parshat Balak is focused on Balak’s attempts to use Bilaam to curse Israel and ignite God’s wrath. These end unsuccessfully, and this seems like the natural conclusion to the parsha. Yet when the sages divided the Torah into parshiyot they chose to add on another nine verses describing the sins of the Israelite men with Moabite and Midianite women, God’s ensuing anger, and the leadership’s inaction.
At the end of the parsha an Israelite man publicly takes a Midianite woman into his tent. Pinchas follows and kills them both with a spear, ending the plague ravaging the camp. Parshat Pinchas picks up with the aftermath – God speaks to Moshe in praise of Pinchas and rewards him, then instructs him what to do about the Midianites. The identities of Pinchas’s victims are not revealed until this parsha – Zimri ben Salu, a leader of the tribe of Shimon, and Kozbi bat Tzur, a Midianite princess.
Why did the sages split the story between two parshiyot? Was it just so Pinchas would have a parsha named after him? Or did the sages want to leave us hanging, wondering: How did one man’s execution of two people put a stop to the plague? And even though God retroactively seems to justify Pinchas’s action, it’s unclear if this is an exception or the rule: Is such vigilantism generally permitted?
Some justify that Pinchas was actually doing what God and Moshe had commanded others:
“The Eternal said to Moshe: Take all the leaders of the people and impale them to the Eternal before the sun, and the fiery anger of the Eternal will turn away Israel. And Moshe said to the officers (shoftim) of Israel: Let each man kill his people who have joined to Ba’al Pe’or.”[1]
There are several issues with this explanation, since Zimri is not described as an adherent of Ba’al Pe’or and Moshe’s command was not directed at Pinchas. In general, the Torah does not approve of people taking the law into their own hands.[2] With the exception of the Sin of the Golden Calf, there has been no extrajudicial execution. Individuals who perpetrate capital offenses are tried and executed – such as the blasphemer and the man gathering sticks on Shabbat. God directly deals with people who took part in communal sins – often with miraculous plagues or fire.
If Zimri’s sin was avoda zara, we might compare it to the Sin of the Golden Calf and justify Pinchas’s violence, but, as we saw last week, this is not so simple. Both the Written Torah and rabbinic tradition focus on his sin of intercourse with a Midianite, and not avoda zara (foreign worship, pagan worship).
Even though the justification of Pinchas’s actions is unclear, the Torah makes it clear it put an end to the plague that killed twenty-four thousand people: “He came after the man of Israel into the tent and stabbed both of them, the Israelite man and the woman in her belly, and the plague upon the Children of Israel was halted.“
The sages who divided the parshiyot make us wait a week to hear God’s explanation in the beginning of Parshat Pinchas:
“Pinchas son of Elazar son of Aharon the Kohen (Priest) has turned My anger away from the Israelites when he zealously avenged Me (b’kano et kinati) within them, and I did not destroy the Israelites in My jealousy (kinati).”[3]
Is kana’ut – jealousy, zealotry, vengeance – a praiseworthy trait? Should we follow Pinchas’s ways?
Hero, vigilante, or both?
The mishna indicates that Pinchas’s actions are based on a general halakhic principle known as “ha-bo’el aramit, kana’im pogin bo”:
“Someone who steals a kasva (sanctified vessel), or curses with a sorcerer, or has intercourse with an Aramean woman – zealots (kana’im) strike him.”[4]
The definitions in this mishna are complicated. A kasva is some type of sanctified vessel used in the Temple, and the who/what/how of the curse is debated, as is the identity of the Aramit. Last we discussed the debate if Aramit applies to all non-Jewish women. Rambam rules that even though intercourse with a geir toshav, a woman who keeps the Seven Noahide Laws, is prohibited, it’s not subject to kana’im pogin bo.[5] Others limit “Aramit” to a pagan woman.[6]
The problem is that it’s unclear if a Torah prohibition against casual intercourse with a Gentile even exists, let alone as an executable offense.[7] In fact, the gemara questions if any of the sins in the mishna are severe enough to incur death. This raises another question: is it possible the Torah would allow extrajudicial execution for sins that are not capital offenses?
The sages do not seem comfortable condoning such extremism; they explain the circumstances of each sin listed in the mishna in a way that compounds its severity and makes it akin to a capital offense.[8] As we have seen, Zimri’s sin, ha’bo’el Aramit, can be understood as a component of avoda zara (pagan or foreign worship), which is an executable offense, or as a Chillul Hashem, desecration of God’s name.
Limiting legitimate vigilantism
The aspect of chillul Hashem both emphasizes the severity of the sin and limits the applicability occasions such vigilantism is permissible since the sin must be public – before ten Jews. Indeed, the rabbis impose several other limitations to kana’im pogin bo. The gemara states that this extrajudicial execution is only permitted while they’re actively engaged in the act.[9] There’s also some debate as to the necessity of a warning. In general, the courts can only find someone guilty of a capital offense if it’s clear they were warned of the sin and repercussions. But, since this is an extrajudicial act perhaps this procedural law does not apply. Nevertheless, Ra’avad teaches the perpetrator must be warned, if only so the vigilante can be sure the transgressor is aware of his sin. Rema rules accordingly.[10]
Furthermore, the gemara states that if the would-be vigilante consults with the Beit Din they do not tell him to execute the sinners. Although this is the halakha “ein morin kein” – it is not taught.[11] This designation is often reserved for laws the sages thought people would not observe properly or could lead to further complications, and so it is preferable they remain obscure and unknown. Halakhic authorities also mention that the kanai must act exclusively for God’s honor, and other intention or benefit makes it murder. For this reason and others, several teach the law is irrelevant, today or in general.
Perhaps one of the strangest elements of this case is the rabbinic conclusion that the bo’el Aramit can kill the kanai in self-defense and he is not prosecuted.[12] This is a strange exception, as such self-defense it is not valid in other instances the Torah allows for killing someone outside of court, as we will soon see. In fact, there’s some indication that the kanai can be prosecuted for murder.
In light of these qualifications it seems that “kana’im pogin bo” creates something of a paradox. While it seems to be a halakhic principle, it is also an extrajudicial act of vigilantism. As such, it fits in perfectly in the context of the tenth chapter of Sanhedrin.
The paradox of lawful vigilantism
The ninth chapter of Sanhedrin concludes the mishna’s list of which sins carry which capital punishment, and then lists many exemptions and leniencies. Tradition tells us that capital punishment was rare, perhaps because it was so difficult to fulfill the judicial requirements. Nevertheless, the mishna also acknowledges that something must be done when a person who is a danger to society escapes justice on a technicality. For example:
“Someone who was flogged and repeats the offense, the court puts him into a chamber and feeds him barley until his stomach ruptures (and he dies). Someone who commits murder without witnesses is placed into a small chamber and fed meager bread and distressing amounts of water.”[13]
The gemara explains that the murderer is then fed barley to expand his stomach until it bursts, and he dies.[14] This is done when there are witnesses, but there is a technical reason their testimony is inadmissible. This law is followed by our mishna of kanaim pogin bo, seemingly continuing the theme of extrajudicial executions.
Interestingly, the previous chapter of Sanhedrin also begins with a case of capital punishment in the courts, but then continues to discuss justified killing outside of the courts. While there are some similarities between the cases discussed in these chapters, we will see there is a significant, glaring difference.
The ninth chapter: “Ben Sorer u’Moreh”
The ninth chapter of Sanhedrin begins with the laws of Ben Sorer u’Moreh, the rebellious son. The rebellious son is executed for stealing to support his addictions to wine and meat. Like ha’bo’el Arami, these are not generally capital sins and the gemara adds several conditions that limit the applicability of the law. Similarly, the sages must explain how the Torah can condone execution for non-capital transgressions. Therefore, the mishna teaches that the rellious son is “nidon al shem sofo,” judged by what he will do. The gemara elaborates that if he is allowed to continue unchecked, he will start robbing on the road and eventually murder someone. So, he is killed before he can kill. This saves the life of a potential victim and also prevents the son from a cardinal sin.[15]
Following these laws the mishna discusses other cases of extrajudicial killing. A burglar who sneaks into a home can be killed in self-defense, as it is assumed he is willing to kill people he finds in the house. This is also someone who is nidon al shem sofo.
From there the mishna moves to the category of “metzilin oto benafsho” “saving a life by killing.” If a person is pursuing another to murder them or, in some cases, rape them, one may use as much force as necessary to stop them – even if this means preemptively killing the attacker.[16] Much like the case of Ben Sorer u’Moreh, there’s some disagreement whether killing the attacker is meant to save the potential victim or the “nefesh,” soul, of the attacker before they commit an unforgivable sin.
When there is no other way to stop the attacker aside from deadly force, the person who kills them is not prosecuted. The act is clearly defensive, and as such it is not an act of a kanaut. The circumstances are generally not limited, in some cases the rabbis expand on the mishna’s category. Finally, it seems that such an act is not merely permitted, it may be obligatory.[17]
Both mishna and subsequent halakhic discussions clearly differentiate between the extrajudicial circumstances of the kanai and the lawful “metzilin oto benafsho.” There is no way to claim there is an absolute obligation to kill “ha’boel Aramit.” And while some midrashim indicate Pinchas was following a tradition Moshe taught him, the Yerushalmi’s discussion indicates that Pinchas knew what he was doing was technically prohibited.[18]
When the law allows for breaking the law
A similar paradox can be found in early discussions of the laws of yeihareg v’al ya’avor – times when a Jew should choose death rather than transgress certain prohibitions. Interestingly, these laws are also discussed at the very end of Perek Ben Sorer u’Moreh, where the gemara concludes one must die rather than commit a sin of avoda zara, gilui arayot, and shefikhut damim – murder. The rabbinic discussion continues that these are under normal circumstances, but if ten Jews are present even a minor sin is a potential chillul Hashem and is also considered yeihareg v’al ya’avor, at least in certain circumstances.[19]
The discussion in the gemara makes it clear that the laws of yeihareg v’al ya’avor developed over time and were mostly based on logical arguments of the sages. In other words, there is a rabbinic tradition that most of the laws of yeihareg v’al ya’avor, with the exception of kill or be killed, is not Divinely mandated. Rather, it is the Jewish people who accepted that there are times it’s better to die on our feet than live on our knees.
For example, the midrash discusses the story in the second chapter of Daniel, when Chananiah, Mishael, and Azarya have to choose between bowing down to a statue or being thrown in a fiery furnace. The midrash relates they asked Yechezkel what to do and he told them they should live. They then asked if they would be saved if they refused to bow down, and he said no. Ultimately, they chose the path of dying al kiddush Hashem – to sanctify God’s name. As the bible states, they refused to bow down and God miraculously saved them.
Yet according to the midrash, this only worked because it was their choice, their zealotry for God, not an express commandment. Conversely, another midrash relates that when Avraham made a similar choice his brother Haran hesitated, and only chose God when he saw Avraham was spared. Haran wasn’t truly willing to give his life for his principles, and God did not intervene to save him. He died in the furnace.
Similarly, here too it seems that the act of the kanai must be an individual decision that is ultimately based on one’s own moral compass. The kanai must be willing to die to honor God. Although Chazal state there is room for such an act, it doesn’t mean it will be accepted by society, or God. After all, it is beyond the letter of the law.
Who is a zealot?
The Torah never calls Pinchas a kanai. In fact, no one is technically called a kanai, people act with zealotry, they are not zealots. It has its time and place, but zealotry should not be a defining characteristic. This idea is strengthened by the covenant of peace God gives Pinchas, and by a story in Yehoshua.
At the end of Sefer Yehoshua the tribes on the eastern side of the Jordan build an altar. They are suspected of avoda zara, and Pinchas leads a delegation to confront them.[20] Only this time Pinchas begins with words, not violence.[21] The discussion makes it clear this was not the intention and there is no bloodshed. Pinchas uses words and makes peace. One who is truly zealous for God’s honor understands that violence is only ever the last resort, and is rarely the answer.
[1] Bamidbar 25:4
[2] For example: Shimon and Levi, Nadav and Avihu, Yehoshua bin Nun with Eldad and Meidad.
[3] Bamidbar 25:11
[4] Mishna Sanhedrin 9:6; Tb Sanhedrin 81b.
[5] Mishna Torah Hilkhot Issurei Bi’ah 12:1-8 (specifically 5(; Magid Mishna ad loc; Bartenura on Mishna ibid.
It should be noted that Rambam and many other sources discuss “the daughter of” and do not give the woman a cultural or religious identity of her own.
[6] See Tzefnat Pane’akh on Mishneh Torah ad loc.
[7] Last week we discussed intermarriage and exclusive relationships, which have a clear Torah prohibition.
[8] Sanhedrin 82b
[9] Although Rambam and others explain the intercourse does not have to be visible, but people need to see them go into a location and know what they’re doing.
[10] Hagahot haRa’avad Hilkhot Issurei Bi’ah 12; Rema Shulkhan Arukh Choshen Mishpat 425:4.
[11] Sanhedrin 82a
[12] TB Sanhedrin ad loc; Mishneh Torah ad loc.
[13] Mishna Sanhedrin 9:2
[14] Tb Sanhedrin 81b
[15] ibid 71b-72a
[16] Ibid 73a. Although it’s clear that one may not use MORE force than is necessary, and someone who kills the attacker when they could have used less force is tried for murder. See Rambam Mishneh Torah Hilkhot Rotzeach v’Shmirat Nefesh 1:13.
[17] See Rambam Mishneh Torah Hilkhot Rotzeach v’Shmirat Nefesh 1:10-13.
[18] TY Sanhedrin 10
[19] TB Sanhedrin 74a-75a
[20] At this time an altar outside the Mishkan is avoda zara, foreign worship (sacrifices in worship of God outside the Mishkan were prohibited at this time, hence this is a prohibited, foreign worship).
[21] This is strange considering Pinchas is also mentioned in the story of the concubine of Geva, where there is a civil war with horrific bloodshed. Yet a closer look reveals that it’s mentioned that Pinchas is there, but he is never consulted.
