In last week’s Halakhah in Brief, I mentioned an interesting responsum of the Havvot Yair, R. Yair Hayyim Bachrach, a 17^th century rabbi in Germany, that I think is worth reviewing in brief. The case itself is fascinating—he says that in Russia there were two Jewish boys who got into an argument and one stabbed the other to death. The murderer fled the town, and when he got to another town, he considered doing teshuvah, but the rabbi he consulted prescribed a process of repentance that was too difficult for him (a topic for a discussion of its own—there is a halakhic concept called takkanat hashavim, which begins in monetary matters), so he instead became a robber. He was eventually arrested for robbery, a crime that was punishable by death (by hanging). A friend of his in the Jewish community wanted to work to secure his release (or at least save him from death). Others claimed that since this person had murdered a Jew, and was therefore liable for the death penalty, not only was it prohibited to save him, a relative of the original victim (the go’el hadam) could have actually turned him over to the authorities (ordinarily the crime of mesirah).

In the event, the efforts of the shtadlan, the person attempting to save him, were unsuccessful, and the man was hanged. Havvot Yair says that he decided nevertheless to ponder the issue, which he divides into two components. First, was the claim that the go’el hadam could have turned the robber in correct? Second, was it permissible (or perhaps even required) to try to save this murderer/robber from his fate?

On the first question, Havvot Yair is fairly negative. He notes two important facts about the institution of the go’el hadam, of the avenging relative. First, he reminds us that the go’el hadam was not allowed to kill the murderer until he had been taken before the courts for a decision. (The verses in the Torah that refer to preparing the road lest the go’el hadam kill him before he arrives at a city of refuge are not, apparently, endorsing that killing, they are attempting to avert such a killing). It is only if the court decides that this person is liable for death, or that he is liable enough that he cannot reside in a city of refuge, that the go’el hadam gets the right to kill him. Further, if the murderer is remanded to a city of refuge, the go’el hadam becomes the primary insurance that the murderer will stay within the city’s confines, since if he leaves, the go’el hadam can kill him.

But Havvot Yair also questions whether the go’el hadam is required or permitted to kill the murderer. Based on his reading of Rambam, he assumes that it is a debate between Rambam and Raavad (that Raavad saw it as an obligation on the go’el hadam, while Rambam saw it as a concession to his anger). Given these two factors—the need for a court case before the go’el hadam gains any rights, and the possibility that it was only a freedom from punishment to begin with—he does not think that a go’el hadam could simply arrange for the murderer’s capture and punishment for a different crime (the question of when we would be required to turn over Jewish criminals to the government is a different one, not being dealt with now).

The question of whether to work for such a person’s release is, however, more complicated for Havvot Yair. He wonders whether we might not be obligated to assume that this is Divine justice for the previously committed crime. It is his reasoning here that I found most interesting. The Talmud notes that after the Jewish court system collapsed, so that the death penalty could no longer be administered by a human court, the Heavenly court still administers such punishments, so that one who is liable for death will find himself being killed in circumstances similar to the one he deserved.

Stretched to its fullest, that gemara would suggest that anytime we see someone being punished, we ought to suspect that it is Divine, and not mix in to alter it. Havvot Yair rejects that extreme reading, but does wonder whether it could apply to people who commit capital crimes. He notes that to some extent the death penalty is fungible, that if we cannot administer one kind of death, we can administer the others. That would mean, for our case, that even if the death coming to the criminal is not the same type of death as would have been given by a Jewish court, we could still view it as his just desserts, as the visitation of Divine Justice.

Havvot Yair notes that if we push that idea to its fullest, if we were to see an adulterer drowning in the river, we would not have to save him, since he is liable for the death penalty, and this may be it. He is uncomfortable with that logic, but does not have a truly ironclad reason for that discomfort. One aid to his view is a rabbinic category called moridin ve-lo ma`alin, people whom the Talmud ruled that we should work to bring about their demise, and who we are prohibited from saving. Murderers are not in that category, nor are many others who have committed capital crimes (such as adulterers). Havvot Yair therefore says it is clearly prohibited to bring about the death of a murderer (such as by telling the government where he is, if that government is going to administer a death penalty for a crime the Torah does not see as deserving such a penalty). He further assumes (although with less certainty) that it is permitted to save such a person if circumstances appear to be leading to his death.

To take this question out of the abstract, Havvot Yair’s discussion guides us as to how to relate to the punishment of evildoers. While the Talmud might inform us that God will arrange for a similar punishment as they would have gotten in the times when Jewish courts operated (and, we hope, will again receive when those courts operate again, speedily in our days), that information does not allow us to assume that we know when that punishment is being administered. Or, at least, we are not allowed to let our intuition about what is or is not Divine Justice to affect our attempts to save our fellow Jews (and, where relevant, non-Jews) from the dangers that they face. Shabbat Shalom.