MISPLACED COMPASSION

Selected Halachos from the “One Minute Halacha” project
By HaRav Yosef Yeshaya Braun, Shlita, Mara D’asra and member of the Badatz of Crown Heights

STUFFING OF SINNERS

“Hal’itehu l’rasha veyamus” (Stuff the wicked one so he may perish) is a troubling halachic concept that seems to offend our sensibilities as well as oppose Torah sources that urge us to feel responsibility for and offer rebuke to the wayward.

The source for this concept is found in the mitzvos that regulate the agricultural fields in Eretz Yisroel: During Shmita (the seventh year [when the Land lies fallow]), all Jewish-grown produce is considered hefker (ownerless) for any passerby to enjoy. But it is the responsibility of the owner to mark all trees that bear prohibited produce—those that are orlah (“uncircumcised” fruit [within the first three years of growth]), neta riva’i (in the fourth year of planting [which would normally be brought to Yerushalayim]) or otherwise forbidden to be eaten. However, all other years, when snatching fruit from another’s orchard would be an act of stealing, the owner has no responsibility to warn would-be thieves which trees are forbidden—as per the explicit words of Rabbi Shimon ben Gamliel (1^st century Tanna of the Mishna): “hal’itehu”—Ram the forbidden fruit down the throat of the wicked so they may suffer the consequences of their sinful ways.

However, continues the Mishna, there are still tzenuim (modest people) who pre-emptively redeem their trees so that another will not inadvertently consume orlah. There is much halachic discussion regarding this practice—whether it is an additional precaution to marking trees in Shmita or something that is done in all years, in conflict with those who leave the sinners to their own destructive ends. The question also arises whether we are to consider this alternative practice over the advice of Rabbi Shimon: is it a positive effort to go beyond basic observance to prevent would-be thieves from eating orlah, or is it more correct to follow the directive of Rabbi Shimon and mentioning what tzenuim do is a subtle warning against misplaced compassion for the reshaim? 

Jewish farmers are not obligated to demarcate trees whose fruit are prohibited due to orlah (“uncircumcised” trees within the first three years of growth) to prevent would-be thieves from consuming forbidden fruit. Freedom from the responsibility to protect others from sinning in this manner is concisely stated by the Tanna (Mishnaic sage) Rabbi Gamliel, “Halitehu l’rasha veyamus.”

This halacha demands explanation, says the Chavos Yair (17^th century posek), since it does not seem to jive with other halachos that call for love, accountability—or at the least rebuke—of the failings of our Jewish brethren.

The Chavos Yair, among other poskim, offers elucidation on the particular circumstances of stolen orlah that place it outside the purview of normal communal responsibility demanded by the Torah: we are speaking exclusively of a passive association with others’ wrongdoing—refraining from marking the forbidden fruit. However, in situations which involve active participation in another’s sin, we are forbidden from tripping up another.

Another possible argument that frees the owner from preventing orlah theft is that the situation is only a potential threat by an anonymous transgressor, and even so, the would-be thief would already be sinning (by stealing), and the preventative measures would merely avert a second crime. But in any situation where a person has prior knowledge of another specific Jew’s intent to sin, and it is possible to prevent it, they are, in fact, required to take action.

The Rambam (Rabbi Moshe ben Maimon, 12^th century) in his Mishnaic commentary clarifies Rabbi Gamliel’s statement: Since the thief is transgressing a much greater aveira (sin) of gezel (theft), we are less concerned with the comparatively lesser prohibition of orlah. Others further explain that by stealing orlah, the thief is consuming “holy” produce, but not actually committing the offense of withholding property from a flesh-and-blood fellowman; a warning against taking from this particular tree might well cause the thief to take from a non-orlah tree and commit a greater transgression. In addition, by stealing, the offender is indicating that warnings against lesser aveiros such as orlah would be fruitless, exempting the owner from making an effort to prevent it.

However, it is pointed out that the crook in this case is termed a rasha (a wicked person), who willfully and regularly transgresses. Otherwise, all the mitzvos of preventing a fellow Jew from transgressing apply, as explained above.

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