The Faculty of Jewish Studies
The Office of the Campus Rabbi
The Punishment of the Subversive City
Dr. Israel Zvi Gilat
School of Social Work; Faculty of Law
The details pertaining to the laws of a subversive city (ir hanidachat)-- a city whose inhabitants worshipped idolatry-- are vague and have been the subject of dispute from the Mishnaic period up until contemporary Torah scholars. No wonder the Tosefta (Sanhedrin 14,1) states: "There never was a subversive city and never will be. Why then was this law written? That we may study it and receive reward". As we know, the laws of a rebellious son (ben sorer umoreh), whose details have similarly troubled scholars of all generations, are likewise described by the Tosefta and the Talmuds: "There has never been a stubborn and rebellious son and never will be. Why then was this law written? That we may study it and receive reward". (Tosefta Sanhedrin 11,6; Talmud Sanhedrin 71a).
Two of the disputes relating to the punishment of the residents of the subversive city will serve to illustrate our point:
1) The Torah specifies the extent of the unique punishment of the residents of the subversive city. "Put the inhabitants of that town to the sword, and put its cattle to the sword. Doom it and all that is in it to destruction" (Deut. 13:16). Two schools of thought exist in the source literature as to the extent of these verses. The Mishnah (Sanhedrin 10,2) explains "All that is in it" as relating solely to property: "The property of the righteous inside it (the city) is to be destroyed, that which is outside - is saved; but that of the wicked, whether inside it or outside, is destroyed"; while the Tosefta (14,3) interprets the verse as dealing with the death penalty for other people in the city besides those who were actually influenced to worship idols: "The young children of the people of the subversive city, who went along with the elders, are not put to death. Rabbi Eliezer says: They are put to death".
The ensuing discussion reveals that the sentence is imposed on the children even if they did not, themselves, worship idols; they are punished because they are "appended" to their fathers who were influenced to worship idols. In Sifre Deuteronomy 94 ( Finkelstein ed. p.155), the same idea is based on the words "Put the inhabitants of that town to the sword" - from here we learn that the dependents are not spared. Abbah Chanan disagrees: 'Parents shall not be put to death for children nor children be put to death for parents' (Deut.24:16) ý -- this verse speaks of a subversive city".
The opinions of the Rishonim (medieval rabbis) also reveal that the dispute over this issue remains unsolved. Maimonides differentiates between a situation in which those who were influenced to worship idols are a minority of the inhabitants of the city, in which case "They are stoned to death and the rest of the city is saved", and a situation in which we find that the majority or all of the inhabitants have been so influenced, in which case: "... they are brought up to the High Court and their sentence is pronounced and all those who worshipped idols are killed by the sword. And every living soul in the city is struck by the sword (including) children and women, if the whole city was influenced. And if those who worshipped idols were the majority the children and women of those who worshipped idols are to be struck by the sword".
According to Maimonides, the children are killed only because they are adjunct to their fathers. Rabbi Meir Halevi of Toledo was puzzled by Maimonides' interpretation and addressed the question to the Scholars of Lunel: "Why punish the women and children who are not under any obligation?" Their answer was: "The Sifre teaches that 'You shall surely strike the inhabitants of the city;' from this our sages learned that the secondary parties are not spared at all, but that they are killed , since the word "et" (et yoshvei ha'ir = the inhabitants of the city) comes [in the Midrash halakha tradition] to broaden the application of the punishment ... furthermore it may be learned from what happened to the followers of Korach and the inhabitants of Jabesh Gilead: in both cases, the women and the children were killed even though they did not sin. They were punished on account of the adult males for two reasons: First, because it is on their account that the men dwell in that town, and furthermore, in order to increase the punishment of the idolaters by killing those whom they love" (quoted from Migdal Oz).
The reason offered by the scholars of Lunel was unacceptable to Rabbi Yosef Karo, as he hinted in his commentary on Mishne Torah, Kesef Mishneh. It seems that Maimonides himself explained his opinion elsewhere. In the Laws of Repentance (Chap. 6, Halachah 1) he noted: "There are sins for which the punishment is inflicted on the sinner in this world, on his person or on his property or on his young children, since a man's young children, who have no mind of their own and have not reached the age of responsibility for observing the commandments, are like his property; the verse 'A person shall not be put to death only for his own crime' (Deut. 24:16) applies only when the child becomes a man". Though Maimonides here refers to the theoretical possibility, in the specific instance of the subversive city his words take on real meaning in reference to the High Court.
2) The Rishonim disagree over another issue as well: Is there an obligation to forewarn the people of the subversive city not to commit the crime before punishing them? At first glance there would appear to be no difference between any ordinary idol-worshipper, whom one must forewarn in order to punish him, and the people of the subversive city who have been seduced into idol-worship. Even so, in Maimonides' Halachot (ibid.) we find the following description of the process of punishing the people of the subversive city: "... The High court sends (emissaries) who inquire and investigate until they have clear knowledge that the entire city or a majority have been influenced to turn to idol-worship. After that they send them two scholars to warn them and to ask them to repent. If they repent, all is well, but if they persist in their folly the Court commands all of Israel to rise up against them, and they besiege them and make war upon them until the city is breached."
"As soon as the city is taken courts are established to judge them (the inhabitants). Anyone about whom two witnesses testify that he worshipped idols after receiving a warning is taken aside. If a minority of the townsmen are found to be guilty they are stoned to death and the rest of the city is spared. If a majority (of the inhabitants) are found guilty, they are taken up to the High Court and sentenced and all those who worshipped idols are killed by the sword..."
The Rabad took issue with Maimonides' opinion concerning the warning sounded by the two scholars which, in his opinion, contradicts what is said in the Talmudic sources. How, he asks, can Maimonides write that "If they return and repent, all is well"? We have never seen a case where repentance is effective after both a warning and the commission of the sinful act. What is the difference between the case of an individual idol-worshipper who, having committed the act after being warned not to do so, cannot be forgiven, and the case of people who have been influenced, along with their fellow - inhabitants of the city, that they may yet repent after having committed the sin?
Several explanations have been offered by the Mishne Torah commentators. According to one opinion, Maimonides believed that this is not a real warning, since it is not given to each person individually. Therefore the inhabitants of the subversive city are given the chance to repent "their folly" and if they do so, they are not punished at all. (Kesef Mishneh). However, this in itself creates a problem. Why are they warned only after the fact? Why is it not necessary to warn the inhabitants of the subversive city before they commit their sin? And why, even if they do not repent, are they punished, if they never received any warning ! Furthermore , since when does the warning have to come specifically from scholars?
It would seem that Maimonides, in fact, does require warning to be given to the people of the subversive city before punishing them, just as in any other case of idol-worship, but that he divided the punishment of the people of a subversive city into two stages.
A. The people of the subversive city are judged individually and must be warned individually. Testimony must be brought against each one of them, both as to the act itself and the intent, as in all cases of individuals charged with idol-worship. There must be a "full" warning issued before the act, which means that he must be warned in the presence of witnesses by another person and the warning must contain explicit details of the punishment.The sinner must "surrender himself to death", meaning that he accepts his punishment immediately before committing the forbidden act. This type of warning, which is a requirement for conviction for most of the transgressions in the Torah, is not for the simple purpose of "differentiating between accidental transgression (shogeg) and intentional (mezid)" but it is a method of saving the transgressor from punishment at the hands of the court, since as we explained elsewhere, it would not be an easy matter to find a criminal who would "surrender himself to death" and commit the crime in face of an explicit warning.
B. After the inhabitants of the subversive city have been judged as individual idol-worshippers, if it turns out that the guilty parties were a majority of the city, they are taken to Jerusalem and are judged collectively as "inhabitants of a subversive city". In this second stage there is no requirement of advance warning since it could not possibly save them. Their verdicts - as to their guilt or innocence- have already been pronounced upon them as individuals. The warning now given by the two sages is not considered a "full" warning as described above; it is a kind of precautionary measure which is meant to provide clear proof to the High Court that the entire city or a majority of its inhabitants have been seduced into idol-worship. This knowledge as presented to the court must be quantitative and not qualitative in nature. The court needs to know how many of the inhabitants "persist in their folly" and whether they turned the town into a "subversive city."
. Another purpose of this kind of warning by two sages is to reduce the number of idol- worshippers who persist in their rebelliousness. The repentance of those who were seduced to idol-worship cannot, as we have already shown, save them from the punishment to which every individual idol-worshipper is sentenced, but it can save them from the application of "he law of the subversive city" in their case. This would include the burning of their property and, according to several halachic opinions, the execution of their young children. Obviously then, this type of warning must be delivered by sages who have some moral influence on the convicted individuals in order to bring them to repentance, even if it can provide no solution for their personal situations. (It should be noted that other interpretations of Maimonides' opinion do exist. See articles by myself and Prof. Nachum Rackover in the notes below).
For further study: Aruch Laner, Sanhedrin 111b; My article "L'tokfah shel Chovat Hahatra'ah B'mishpat Haonshin Ha'ivri", Mechkarei Mishpat 6 (1988), 217, 238, 256; N. Rackover, "Hashpa'at Hatshuvah al Ha'anisha," Mechkarim B'halacha Ub'machshevet Yisrael (In honor of Rabbi Dr. Emanuel Rackman), Bar Ilan University, 1994, pp. 183, 185-186.
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