(1) I am a friend of Baruch Galbut; we've been dicussing the Rambam in Hilchos Rozeach Perek vav halacha Heh. He explained that you said that the Rambam thinks that the only isur involved for the goal hadam is "lo Tikom" and that we beleive ed echad by issurim.
My question is this: What about the isur of "lo Tirzach". (Is it that in this case since the beis din cannot rule, the goel hadam's right to kill the rozeach stands and that only in a case like shogeg karov leones with two edim does the beis din take away the right of the goel hadam to kill the rozeach?)
If the issur of "lo tirzach" is waved for the goel hadam in this case, then shouldn't the issur of "Lo tikom" be waved as well? Why need an ed at all?
What does the raavad (who critiques the rambam) hold?
(2) I wanted to propose an explanation of the rambam and raavad based on the even haazel and hear what the rav thinks. The rambam (in perek heh halacha tet-yud) paskens like Rav Huna (makkos 10B) that a goel hadam who kills the rozeach as the rozeach is running to the ir miklat is patur. The Raavad doesn't criticize that psak. What kind of edus does the goel hadam require to act like a goel hadam in that case? Certainly, if he himself sees the rzicha, he can function as a goel hadam. I assume the same is true if he hears about the rzicha from an ed echad. In other words, the goel hadam does not require usual edus to function as a goel hadam. Now when does this ptur run out? I would say that according to the raavad, as soon as the rozeach gets to the ir miklat (or perhaps to beis din), the goel hadam's ptur to act outside of beis din is over. Now the court takes over. Hence the Raavad's lashon; "eich natir (i.e. via beis din) damo shel zeh in the case of a horef bemazid with one eid.
But let's think of the case in perek vav halacha heh; the beis din can not reach any psak because there was only one eid. (The Raavad would say to the goel hadam "too bad"; your ptur is over.) But perhaps the Rambam hold that only a psak of beis din end the ptur of a goel hadam to act outside of beis din. In our case there is no psak- therefore, the goel hadam's right to act outside of the rubric/jurisprudence of beis din continues. The beis din doesn't allow the goel hadam to kill the rozeach. But if he does, he is patur, just like he would certainly be patur if he had killed the rozeach while the rozeach is running to the ir miklat. In other words, for the rambam, this case is exactly like the case of a goel hadam killing the rozeach as the rozeach runs to the ir miklat.
Thank you in advance. I look forward to your response; this rambam has been bothering me for a while. I look forward to hearing feedback on this hesber,
Gur Berman, Boca Raton, Flordia
(1) The answer I mentioned to Reb Baruch Galbut was heard from Rav Moshe Shapiro in the name of Rav Chaim Smulevitz z'l. His answer is that the question of whether Lo Sirtzach applies or not can be decided by an Ed Echad, since an Ed Echad is believed for Isurim. (As you said, the question here is one of Lo Sirtzach; it has nothing to do with Lo Sikom).
The reason for this is because it is not necessary to judge Dinei Nefashos here (and to require 2 witnesses), since the Go'el ha'Dam does not kill as an agent of Beis Din (ie. as a "punisher") but as a Nokem (an "avenger"). If there is no Isur of Lo Sirtzach, the Goel has the license to kill. (The Ra'avad, who argues, learns that any manner of affecting another person's life requires 2 witnesses.)
(2) Your answer sounds nice. But the main question of the Ra'avad was how can you compare seeing a murder, to hearing about it from a single witness. Why should a Go'el be allowed to rely on the "hearsay" of a single witness to take another person's life?
If you are not using the logic I mentioned previously, I'm not sure how you addressed this.
Best wishes,
Mordecai Kornfeld
(1) Do you mean that the Goel Hadam, when he acts as a nokem requires some sort of edus and that the ed echad serves as that edus here?
(2) But even the Raavad would hold (I think) that when the rozeach runs to the ir miklat right after the rzicha and before beis din has gotten involved, the goel can kill the rozeach and rely on ed echad to do so. That's what the Rambam writes in heh:yud and the raavad doesn't criticize him.
Also, if I'm reading the gemara in Sanhedrin 49A correctly, when Yoav kills Avner, he kills him not as a an agent of Beis Din but as a nokem and there presumably there were not two edim who testified that Avner killed Asael. The gemara is clear that Yoav is pature for killing avner
My point is that anyone who paskens like Rav Huna in Makkos 10a (as the rambam and the raavad do) holds that the torah gave the goel hadam alot of leeway to kill the rozeach outside the rubric of beis din and without the usual two edim. For the raavad (as I understand him), that permission ends at some point (probably after beis din gets involved); for the rambam (as I understand him), in the absence of a court ruling (because there is only one ed) that permission continues forever
Good shabbos and again thank you for taking time to respond,
Gur Berman
First of all, I apologize for the delay in my reply.
Regarding your points:
(1) Yes, even the Goel Hadam cannot kill without *knowing* that the person he is killing is a Rotze'ach. He can "know" either by seeing the murder with his own eyes, or by hearing about it from one witness (according to the Rambam) or two witnesses.
(2) Let's first deal with your question about Avner, since I don't think that it is pertinent to our discussion.
1. It seems clear to me that everyone knew how Avner killed Asa'el. Shlomo and his court didn't challenge that point and took it for granted. From the verses, I see no reason to suppose that nobody was watching. The reason Avner was not brought to trial for the act was because he did not have Hasra'ah. Even so, as a Go'el Hadam, Yo'av was allowed to kill Avner (like the Rambam writes in 6:5).
2. The main point that bothers you seems to be the Rambam in Hilchos Rotze'ach 5:9-10 who rules, based on Rav Huna's statement in Makos 10b, that the Go'el Hadam is Patur if he kills the Rotze'ach *before* the case is decided in court. You want to know how a person can be allowed to kill the Rotze'ach if proper testimony has not yet been presented. You see this as a direct contradiction to the ruling of the Ra'avad (6:5) that the Go'el Hadam *cannot* kill based on a single witness. But I see it as problematic for the Rambam as well; even the Rambam would not allow a Go'el Hadam to kill without *any* witnesses, and in Rav Huna's case there are none!
Your suggestion, that the Torah gives a special "license to kill" to any Go'el Hadam until the case is brought to court, is hard for me to accept. If such is true, you are allowing the Go'el Hadam to kill based on his *own* claim, even without a single witness. Anyone could kill whoever he wanted, claiming that a blood relative of theirs was killed by this person - and would get away with it!
Rather, it would seem to me that the Go'el Hadam can only kill by relying on the witnesses that he knows to exist. If he kills without witnesses - he is putting his own life on the line. The court will later bring him to task and punish him as a killer if he cannot prove to their satisfaction that he actually is a Go'el Hadam. Thus, when you wrote in your original letter, "Certainly, if he himself sees the rzicha, he can function as a goel hadam," that is only partially true. Yes, if he himself sees the murder, he is rightfully a Go'el Hadam and can justify to himself killing the murderer. However, unless he can *prove* that to Beis Din, they will not have any reason to believe him, and they will kill him. Thus, Rav Huna means that the Go'el Hadam can kill the murderer before the case reaches the courts *as long as* he really is a Go'el Hadam. That is the simple meaning of Rav Huna's law, I think.
3. However, I would like to point out that the Rambam never says that the Go'el Hadam *is permitted* l'Chatchilah to kill the murderer. Rather, throughout Perek 5 and 6, he writes that the Goel Hadam is *Patur for killing* the murderer - post facto. The only time it is permitted to kill the murderer l'Chatchilah is if, after the court deems him a Rotze'ach b'Shogeg, the murderer enters an Ir Miklat *and then leaves it* willingly. The Minchas Chinuch points this out (Mitzvah #34:8), and the Divrei Yechezkel discusses this more at length (23:9; see Ritva Makos 12a).
If so, the Ra'avad's question about killing based on a single witness would not seem to be valid. The Rambam agrees that Beis Din would not *permit* a Go'el Hadam to kill based on the testimony of a single witness. However, they would not *kill* the Go'el Hadam, post facto, if he kills the murderer based on a single witness, since *perhaps* he is indeed a Go'el Hadam; after all, a witness supports his claim. (Had there not even been a single witness, the court would kill the self-professed Go'el Hadam and disregard his claim.)
But, I should point out, the choice of words of the Ra'avad (6:5) implies that he indeed holds that the Go'el Hadam can kill the murderer *l'Chatchilah* before he reaches an Ir Miklat (the case he is discussing is one in which the murderer does not go to an Ir Miklat altogether). As the Ra'avad says, "How can we trust a single witness to 'permit' the blood of another person to the Go'el Hadam."
If so, the Ra'avad's reasoning is clear and obvious, and in fact conforms to a large extent to your suggestion. The Ra'avad holds that *until* the case is brought to court, the Go'el Hadam can kill, l'Chatchilah, without witnesses, since he can say the *he* knows that there are witnesses to back his claim. (He is, however, putting his life on the line, since if no witnesses turn up he himself will be killed, as I mentioned.) However, after the court has shown that there is but a single witness backing him, they will certainly not *allow* him to kill. Of course, if the Go'el Hadam does kill relying on the single witness, he will not be put to death post facto (as I mentioned above). The Rambam, who never allows a Go'el Hadam to kill l'Chatchilah, does not distinguish between before and after the court case.
This does not seem to conform to the approach of Rav Shapiro that I mentioned in my original correspondence, since he seemed to imply that a single witness allows the Goel Hadam to kill l'Chatchilah. Perhaps he meant that a single witness would not even create a Safek to Beis Din to save the Goel Hadam *post fact* if not for the Halachah of Ed Echad Ne'eman b'Isurin; I will have to ask him about this.
NOTE: After writing this, I had the opportunity to ask Rav Shapiro about his intention. He indeed clarified for me that my suggestion is wrong because an Ed Echad does not even create a Safek to Beis Din with regard to Dinei Nefashos.
I hope this is helpful for you. Best wishes for a Kesivah va'Chasimah Tovah,
Mordecai Kornfeld
Thank you for the extensive answers to my query. Just a few more sources for your information.
1. The Even Haazael on our Rambam (in perek vav) is the source that got me thinking in this direction in the first place. He says pretty explicitly that in this case the goel hadam can rely on ed echad because he's not killing as a representative of beis din (similar to the answer you provided in the name of Rav Shapiro).
2. The Rambam in Moreh Nevuchim III:40 says that a goel hadam will kill the rozeach even based on the testimony of a women or a shifcha ( implying, I think, that this is an ed echad neeman biisurin issue-we don't even need a kosher ed!)
3. Finally, the Chazon Ish that you quoted points out that the gemara in Sanhedrin 49a says that Yoav is Patur for killing Avner as the Goel Hadam for Asael (even though Yoav killed Avner before any court pronounced any verdict). The Chazon Ish uses that Gemara to answer the Kesef Mishna's question (on the Rambam in perek heh) as to why the Rambam paskens agains Rav who in makos 12a says he doesn't believe at all in the idea of a goel hadam who functions independently of beis din.
Again, thank you.
Ktiva Vchatima tova,
Gur Berman
1. Thank you for the reference.
2. I have seen the Moreh Nevuchim (the Ohr Same'ach notes it). But I did not find any reference there to the testimony of a woman or Shifchah. Could you have seen this in a Sefer that tries to construct such an assumption based on the logic of the Rambam there? In any case, I don't see why such a conclusion would have to follow from the Rambam's logic in Moreh Nevuchim for the Mitzvah of Arei Miklat.
3. The Chazon Ish you are referring to is not the one I quoted. It is in Likutim CM #23 (Makos 10b), not in CM #17. His words there are indeed difficult. As he writes, the basis for his conclusion is that "it is not logical to assume that we would be more lenient with the Go'el Hadam if he kills the Rotze'ach before he reaches the Ir Miklat, than we would be if he kills the Rotze'ach after he reaches the Ir Miklat and then leaves it" (end of DH va'Chalukah). However, the Ritva on 12b presents just such a logic.
In fact, the Chazon Ish that I quoted (CM 17:2) quotes that Ritva. In that same paragraph, he again asks why the Rambam rejected the ruling of Rav, and after rejecting the Kesef Mishnah's answer he leaves the question *unanswered*.
Best wishes for a Kesivah va'Chasimah Tovah,
Mordecai Kornfeld
Dear Rabbi Kornfeld,
(a) I am pasting the quote from the moreh nevuchim. The quote comes from the last few lines of chapter 40 when the Rambam talks about eglah arufah.
"and as soon as a man, or even a woman or handmaid, rises up and names a certain person as having committed the murder, the heifer is not killed. It is well known that it is considered great wickedness and guilt on the part of a person who knows the murderer, and is silent about him whilst the elders call upon God as witness that they know nothing about the murderer. Even a woman will, therefore, communicate whatever knowledge she has of him. When the murderer is discovered, the benefit of the law is apparent. If the court of justice cannot sentence him to death, the king may find him guilty, who has the power to sentence to death on circumstantial evidence; and if the ling does not put him to death, the avenger of blood may scheme and plan his death, and at last kill him"
(b) Would it be accurate to summarize our discussion of the rambam in hilchos rozeach, perek vav-halacha heh as follows: one understanding-ans as you point out there are many others- is that according to the rambam the goel hadam functions as a nokem, not an agent of beis din and therefore for him killing the rozeach is an issur that requires ed echad to validate his status as goel hadam.
(c) I'm not sure you ever addressed the raavad's position but again if you assume that the raavad agrees with the rambam in perek heh, halacha 9-10 then the raavad agrees with the rambam that initially (after the murder before the rozeach makes it to ir miklat (like the chazon ish)) the goel hadam functions like a nokem independent of beis din. At some point he loses that status and according to what I want to say (although I haven't seen anyone say this) the raavad would hold that the nokem status of the goel hadam ends when beis din takes up the case. At that point, the goel hadam must function as an agent of beis din and if the beis din can not come to a conclusion (because there is only one ed, then their agent is also unable to act-hence the raavad's language- eich naamin bead echad lehatir damo shel zeh...)
Again thanks for all the correspondences
Gmar chasima tova,
Gur
Gur,
(a) Thank you, I missed that.
I would like to point out, though, that the English translation you provided can be misleading. In the sentence, "the avenger of blood *may* scheme and plan his death..." the word "may" does not mean "is permitted (to scheme...) ". My reading of the Hebrew text is that the avenger of blood "perhaps will" scheme...".
That is, as I mentioned previously it is clear from the Rambam in Hilchos Rotze'ach (especially ch. 5:9-10) that he *never* permits any Go'el Hadam to kill a Rotze'ach who hasn't been sentenced to death (unless the Rotze'ach entered an Ir Miklat and then left it willingly). Rather, he holds that if the Go'el Hadam kills the Rotze'ach, the Go'el Hadam is not sentenced to death for doing so. In the Moreh as well, the Rambam is not permitting a Go'el Hadam to kill based on the testimony of a single witness. Rather, he is saying the "perhaps" justice will be done, since the hot-headed Go'el Hadam may kill the Rotze'ach. He certainly is not saying anything that Ed Echad Ne'eman etc. will allow the Go'el to kill l'Chatchilah.
Moreoever, in Moreh, he does not relate at all to the question of what we will do to the Go'el Hadam *after* he kills the Rotze'ach - which is the issue addressed in Hilchos Rotze'ach 6:5. It is possible that we will indeed put him to death because we do not have two witnesses to corroborate his claim. It is in Hilchos Rotze'ach that we find the Rambam's Chidush about exempting the Go'el Hadam based on a single witness.
(b) Yes.
(c) I wrote earlier that the Ra'avad argues with the Rambam regarding an important point. He seems to permit the Go'el Hadam to kill the Rotze'ach *l'Chatchilah*. However, that is only true after the Rotze'ach has been sentenced to Galus. I have no reason to believe that the Ra'avad will allow a Go'el to kill the Rotze'ach *before* the sentence of Galus has been passed on the Rotze'ach.
Even if he agrees to what the Rambam writes in Hilchos Rotze'ach 5:9-10, that only shows that the Go'el is *Patur*, b'Di'eved, if he kills the Rotze'ach before a sentence of Galus has been passed on the Rotze'ach. In addition, we explained that even the Rambam does not exempt the Go'el from the death sentence unless the Go'el later finds witnesses to prove that the person he killed was indeed a Rotze'ach (according to the Chazon Ish; or unless he finds such witnesses *before* killing the Rotze'ach, as I wrote two letters back).
According to this there is no basis for the assumption that the Ra'avad - or the Rambam - allow the Go'el to function independently of Beis Din at any point, neither l'Chatchilah nor b'Di'eved.
Good luck with your Chabura!
Be well and Chanukah Same'ach,
Mordecai