Beat Him Until He Says, "I Consent"?

The concept that an ideology can force its followers to maintain their observance to it is one that is very difficult today. However, even the promise of good and bad reward for observance is in itself a kind of force. What is the difference between the promise of reward/the threatening of punishment seen in all religions and ideologies, and the actual beating of people? Both are coercive. But when that force turns to violent means to enforce, for some reason that is a terrible thing. And we must also question its purpose - what kind of points are given to a person who does a command only because he was forced to do so? It seems counterproductive to one's spiritual growth to require such a thing.

Yet, Judaism seems to require this by the courts (at least, and perhaps even by the people). Leviticus 1:3 states:

If his sacrifice is a burnt offering from cattle, an unblemished male he shall bring it. He shall bring it willingly to the entrance of the Tent of Meeting, before the Lord.		גאִם עֹלָה קָרְבָּנוֹ מִן הַבָּקָר זָכָר תָּמִים יַקְרִיבֶנּוּ אֶל פֶּתַח אֹהֶל מוֹעֵד יַקְרִיב אֹתוֹ לִרְצֹנוֹ לִפְנֵי יְהֹוָה:
He shall bring it: [This clause] teaches us that the person is coerced [to bring the offering if he is remiss in bringing the sacrifice he had promised]. One might think that this means that they should force him against his will [to bring the offering]! Scripture therefore says: “[He shall bring it] willingly (לִרְצֹנוֹ).” How is this possible [that on one hand he should be forced, yet on the other, he must bring the offering willingly? The explanation is that] they must coerce him until he says “I am willing.” - [R.H. 6a, Torath Kohanim 3:15] 3-4.		יקריב אתו: מלמד שכופין אותו. יכול בעל כרחו, תלמוד לומר לרצונו, הא כיצד כופין אותו עד שיאמר רוצה אני:

So which is it? Is he forced, or does the law require it to be brought by his own free will? How can forcing someone to say he wants it ever be considered free will? As the koifer Ehrlich points out in Mikra Kefshuto:

"I have not merited to see what the difference between this and being forced to do it is."

The various gemaras that talk about it shed light on this. There's a lot to talk about but I'll just reference possible sources for the Rambam (which we'll see later) that one's inner will is always to do mitzvot, and external force to do a mitzvah is getting one in touch with his true self. Where does this come from?

The Talmud Kiddushin 49b tells the story of a man who sold all of his assets in order to make aliyah to Israel from Babylonia. When he sold the items to someone, he didn't stipulate explicitly for the sale to be valid only should he successfully leave to Israel. In fact, he was not successful, and sued to have his items returned, as he only sold them with the intention to leave to Israel.

Rava opined that his intention in selling, as an unspoken "davar she-b'lev", is not considered worth anything in a court of law. He could not get his items returned.

The Talmud attempts to adduce Rava's source for his contention. One suggestion is that it comes from a very different area of law. The Torah states that (Leviticus 1:3) "If his offering be a burnt-offering of the herd, he shall offer it a male without blemish; he shall bring it to the door of the tent of meeting, according to his will, before God." Note the underlined. It must be according to his will. The Talmud states that this means he cannot be forced to offer a sacrifice. What if he doesn't want to bring the offering that he promised? The famous line of the Talmud, "We force him until he says, 'I want.'" What do we see, asks the Talmud? That even though in his heart he clearly doesn't want to, we get him to say he does! "Devarim she-b'lev einan devarim"!

But the Talmud suggests that "devarim she-b'lev einan devarim" isn't the principle in use there, but rather that since he receives atonement, we can testify he was happy about that aspect, and therefore it was done willfully even inwardly.

So it admits defeat in this area, the sacrifice, and moves onto the end part of this statement, that divorce documents and manumission documents must be done of the husband/master's own volition, but if they refuse, they can be forced until they say, "I want."

But the Talmud suggests that perhaps this works not because "devarim she-b'lev einan devarim", but because it is a mitzva to listen to the sages. And so, it moves on to a different solution to find a source for "devarim she-b'lev einan devarim".

What do we learn? There are at least two reasons why force works. One is that there are cases where in the end, it causes them to acquire something they want (atonement), even though the cause to get it was by force. The second is that forcing someone to do a mitzvah (such as listening to the rabbis) is not considered force. As Rashi states, "דמצוה לשמוע דברי חכמים. ואית לן לאחזוקיה בחזקת מקיים מצוה וגמר בלבו לקיים דברי בית דין:" - Meaning, that we have an assumption that we will fulfill mitzvot, and that everyone wants to really keep the word of Bet Din in their hearts. This Talmudic passage sounds like the source for the Rambam Gerushin 2:20, as the Kesef Mishna suggests. Rambam says:

מי שהדין נותן שכופין אותו לגרש את אשתו ולא רצה לגרש. בית דין של ישראל בכל מקום ובכל זמן מכין אותו עד שיאמר רוצה אני ויכתוב הגט והוא גט כשר... ולמה לא בטל גט זה שהרי הוא אנוס בין ביד עכו"ם בין ביד ישראל. שאין אומרין אנוס אלא למי שנלחץ ונדחק לעשות דבר שאינו מחוייב בו מן התורה כגון מי שהוכה עד שמכר או עד שנתן. אבל מי שתקפו יצרו הרע לבטל מצוה או לעשות עבירה והוכה עד שעשה דבר שחייב לעשותו או עד שנתרחק מדבר האסור לעשותו אין זה אנוס ממנו אלא הוא אנס עצמו בדעתו הרעה. לפיכך זה שאינו רוצה לגרש מאחר שהוא רוצה להיות מישראל ורוצה הוא לעשות כל המצות ולהתרחק מן העבירות ויצרו הוא שתקפו וכיון שהוכה עד שתשש יצרו ואמר רוצה אני כבר גרש לרצונו. 

When a man whom the law requires to be compelled to divorce his wife does not desire to divorce her, the court should have him beaten until he consents, at which time they should have a get written. The get is acceptable. This applies at all times and in all places.

...

Why is this get not void? For he is being compelled - either by Jews or by gentiles - [to divorce] against his will [and a get must be given voluntarily].

Because the concept of being compelled against one's will applies only when speaking about a person who is being compelled and forced to do something that the Torah does not obligate him to do - e.g., a person who was beaten until he consented to a sale, or to give a present. If, however, a person's evil inclination presses him to negate [the observance of] a mitzvah or to commit a transgression, and he was beaten until he performed the action he was obligated to perform, or he dissociated himself from the forbidden action, he is not considered to have been forced against his will. On the contrary, it is he himself who is forcing [his own conduct to become debased].

With regard to this person who [outwardly] refuses to divorce [his wife] - he wants to be part of the Jewish people, and he wants to perform all the mitzvot and eschew all the transgressions; it is only his evil inclination that presses him. Therefore, when he is beaten until his [evil] inclination has been weakened, and he consents [to the divorce], he is considered to have performed the divorce willfully.

So the obligation to keep the mitzva is the real free will, and the inner push not to keep it is the real taking away of free will, and we are trying to "restore" him to his true free will.

Another Talmudic passage is Ketubot 86a:

א"ל רב כהנא לרב פפא לדידך דאמרת פריעת בעל חוב מצוה אמר לא ניחא לי דאיעביד מצוה מאי א"ל תנינא במה דברים אמורים במצות לא תעשה אבל במצות עשה כגון שאומרין לו עשה סוכה ואינו עושה לולב ואינו עושה מכין מכין אותו עד שתצא נפשו:

 Said R. Kahana to R. Papa: According to you, that you said that the repayment of [a debt to] a creditor is a mitzvah,  what is the ruling where [a debtor] said, 'I do not want to perform [this] mitzvah'? 

He replied, "We have learned: [We whip someone 40 lashes] in what case? For [someone who refuses to perform] negative precepts, but in the case of positive precepts, as for instance, when a man is told, 'Make a sukkah'  and he does not make it or, 'Perform the commandment of the lulav',  and he does not perform it he is beaten until his soul departs.

It is very difficult to believe that Bet Din would be obligated to beat someone to death if he won't keep positive commands, because then he surely won't keep them when he's dead! It could be that the knowledge that such a possible conclusion to this case would prevent sinners from reaching it.

Parenthetically, I have understood the problem of Amalek in similar terms. That is, if a nation was willing to attack Israel early on, and Israel did not respond in kind (at least in theory), it would open a pandora box of marauding peoples who view the Israelites as weak, perceiving an easy target in them. They would see the possibility of taking the Israelites riches for themselves, and enslaving the people. This was the nature of the times and rules of war. It could mean extinction if not dealt with fiercely. By having this strict rule on the books, the other nations would know the very dire consequences of such actions. I believe that the point of the law was preventative, not prescriptive. Maybe maybe maybe, one can see this a bit in Maimonides' Guide for the Perplexed, 3:41 (Pines Version, page 566):

The Book of Judges includes also the commandment to destroy the seed of Amalek, for one particular tribe or nation ought to be punished, just as one particular individual is punished, so that all tribes should be deterred and should not co-operate in doing evil. For they will say: Lest be done to us what was done to the sons of such and such a man. Thus, even if there should grow up among them a wicked corrupt man who does not care about the wickedness of his soul and does not think of the wickedness of his action, he will not find a helper of his own tribe to help him in the wicked things whose realization he desires. Accordingly, it was commanded that Amalek, who hastened to use the sword, should be exterminated by the sword.

On a drush level, we could say the above Talmudic passage of "beat him until his soul departs" is the source for the Rambam as well. We could say that "until his soul emerges" means until his true self comes out through a weakened will to sin, through a beating. But not death. His true soul is coming to the fore.

That's derush-y. I think on a more real level, but still not exactly pshat, is that the Rambam believes that it is impossible for Jewish people to be truly cruel. The Talmud states that the mark of the Jew is his way of kindness. In Hilchot Avadim 9:8 of the laws of slaves, Rambam records this as law that although Judaism allows for crueller treatment of non-Jewish slaves than Jewish slaves, the way of the Jew is to be merciful and kind, and one should even suspect the lineage of a cruel Jew. So it could be that he truly believed that deep down, nobody is so cruel as to refuse his wife a get. So to beat him so his inner self comes out, the mark of the Jew, isn't force at all:

It is permissible to have a Canaanite slave perform excruciating labor.Although this is the law, the attribute of piety and the way of wisdom is for a person to be merciful and to pursue justice, not to make his slaves carry a heavy yoke, nor cause them distress. He should allow them to partake of all the food and drink he serves. This was the practice of the Sages of the first generations who would give their slaves from every dish of which they themselves would partake. And they would provide food for their animals and slaves before partaking of their own meals. And so, it is written Psalms 123:2: "As the eyes of slaves to their master's hand, and like the eyes of a maid-servant to her mistress' hand, so are our eyes to God."

Similarly, we should not embarrass a slave by our deeds or with words, for the Torah prescribed that they perform service, not that they be humiliated. Nor should one shout or vent anger upon them extensively. Instead, one should speak to them gently, and listen to their claims. This is explicitly stated with regard to the positive paths of Job for which he was praised Job 31:13, 15: "Have I ever shunned justice for my slave and maid-servant when they quarreled with me.... Did not He who made me in the belly make him? Was it not the One who prepared us in the womb?"

Cruelty and arrogance are found only among idol-worshipping gentiles. By contrast, the descendants of Abraham our patriarch, i.e., the Jews whom the Holy One, blessed be He, granted the goodness of the Torah and commanded to observe righteous statutes and judgments, are merciful to all.

And similarly, with regard to the attributes of the Holy One, blessed be He, which He commanded us to emulate, it is written Psalms 145:9: "His mercies are upon all of His works." And whoever shows mercy to others will have mercy shown to him, as implied by Deuteronomy 13:18: "He will show you mercy, and be merciful upon you and multiply you."

But what to make of yet another Talmudic passage, Bava Batra 47b-48a which states:

אמר רב הונא: תליוהו וזבין - זביניה זביני מ"ט? כל דמזבין איניש, אי לאו דאניס לא הוה מזבין, ואפילו הכי  זביניה זביני. ודילמא שאני אונסא דנפשיה מאונסא דאחריני אלא כדתניא: (ויקרא א') יקריב אותו - מלמד שכופין אותו, יכול בעל כרחו? תלמוד לומר: לרצונו, הא כיצד? כופין אותו עד שיאמר רוצה אני. ודלמא שאני התם, דניחא ליה דתיהוי ליה כפרה ואלא מסיפא: וכן אתה אומר בגיטי נשים, כופין אותו עד שיאמר רוצה אני. ודלמא שאני התם, דמצוה לשמוע דברי חכמים אלא סברא הוא, אגב אונסיה גמר ומקנה.

R. Huna said: If a person sells something out of fear of physical violence the sale is valid.

Why so? Because whenever a man sells, it is under compulsion [because he presumably needs money], and even so his sale is valid.

But should we not differentiate internal from external compulsion? - [We must] therefore [give another reason], as it has been taught: [From the superfluous words], "he shall offer it," we learn that a man can be forced to bring an [offering which he has vowed].

Does this mean, even against his will? - [This cannot be] because it says, "According to his will."

How then [can he be forced, yet it is willfully done]?

He is forced until he says, 'I consent.' 

But perhaps there is a special reason in this case, that he may be well satisfied [to do so retrospectively], so as to have atonement made for his sins? 

We must therefore [look for the reason in] the next passage: 'Similarly in the case of divorces, [where the Rabbis have said that the husband can be forced to give a divorce] we say [that what is meant is that] force is applied to him till he says, "I consent."

But there too perhaps there is a special reason, that it is a religious duty to listen to the word of the Sages? 

What we must say therefore is that it is reasonable to suppose that under the pressure he really made up his mind to sell.

Lots of mystery in this piece of Talmud. R. Huna states that a sale under duress is valid, and this is very difficult to understand for the Talmud. The Talmud entertains the possibility that all sales are under duress, and are nonetheless valid, but quickly disabuses us from such notions by making a distinction between internal duress (needing money to buy food etc), which would be valid, and external duress (someone beating you until you consent) which would not be valid. It states this as an obvious difference, but does not explain why there should be a difference. And many more implications. This passage is something I hope to explore soon.