Sanhedrin 112

1:
The last two mishnayot of the present chapter have nothing to do with the riotous and rebellious son. And yet there is a logical and a developmental connection between the main topic of this chapter and the topic of our present mishnah. We saw in the previous mishnah that "the riotous and rebellious son is condemned on account of his future". That is to say, his life is forfeit not because of something he has done but because of what he most probably will do in the future. Another law which makes a person's life forfeit even though they have not yet committed a capital offence is the person caught breaking in to another person's home.

2:
The origin of this law is in the Torah:

This passage from the Torah is by no means easy to translate, and the above translation is not literal, but based on the traditional interpretation of the verses. It would perhaps be helpful if I were to make comments.

3:
The chapter division after verse 21:37 is almost nonsensical and can only be justified by a literal understanding of the verses divorced from rabbinic interpretation. We have had several occasions over the years to note that the division of the Bible into chapters is not of Jewish origin. It was done by the English Archbishop Stephen Langton [1151-1228 CE]. (However, Langton's greatest claim to fame is not his division of the Bible into chapters but the fact that, as Archbishop of Canterbury, he exerted great moral force on the recalcitrant King John and was most instrumental in getting him to sign Magna Carta.) The fact that the chapter division was done by a Christian cleric is sufficient to explain the divergence from rabbinic interpretation.

4:
What particularly concerns us as regards our present mishnah is the stipulation of the law that if a thief be caught breaking into someone else's property his life may or may not be forfeit. If the break-in takes place during the night (or under circumstances where the owner cannot know what the intentions are of the person breaking into his property) he is entitled to save his property (and perhaps his safety and the safety of the other members of his household) by taking the life of the person breaking in to his property. Two legal principles are at work here. Firstly, it is not reasonable to expect a person to stand idly and not try to prevent himself being robbed [Gemara Sanhedrin 72a]. Secondly, and more importantly, when there is the possibility that someone is threatening your life you have the legal right and duty to strike first [also Sanhedrin 72a]. When a householder knows that someone has broken into his house but, because of the prevailing circumstances, cannot discern what are the intentions of the intruder he is at liberty to take whatever steps are necessary to protect his life and his property – including striking the intruder dead. In other words, under such circumstances the life of the intruder is legally forfeit – even though he has not committed a capital crime. The assumption is that he may be condemned to death by the householder, as it were, "on account of his future", on account of his intended and probable larceny and homicide.

5:
On the other hand, when the circumstances are such that the householder can make an informed evaluation of the intruder's non-violent intentions he may by no means hold the intruder's life to be forfeit. But this aspect of the law, of course, is not of concern to our present study.

6:
The connection between our present mishnah and the previous one is now obvious: neither the riotous and rebellious son nor the person killed by a householder when breaking in in uncertain circumstances has committed a capital crime at the time of their judicial death. The former has only disobeyed his parents and in a sense is in contempt of court, but he has not yet become the dangerous bandit that the Torah foresees, as it were. The intruder, at the time when the householder legitimately causes his death has not yet committed any act of mayhem or homicide.

7:
Having referred to the violent intruder, our mishnah adds a further consideration. If the intruder damages the householder's property while executing "his felonious little plan" he may be sued by the householder for damages caused provided that his life was not forfeit; but if the householder had the right to kill the intruder but for some reason or other did not do so he may not recover his losses incurred by the damage. The reason for this strange situation is because of a principle implied in another mishnah [Bava Kamma 3:10] which suggests that a man cannot both stand in jeopardy of his life and at one and the same time also be required to make monetary restitution.

8:
Those who are interested in the aspect of the law mentioned by the above Biblical quotation that the penurious thief is sold can reread the extensive comments on this matter to be found in RMSG for November 16th 1995 onwards.

Orin Rotman writes:

What seems so curious about the entire discussion about the rebellious son, and particularly mishnah five as to the 'reason' for his condemnation is the lack of discussion about the mitzvah Kabed et avicha… Would it not seem that there would be a kal v'chomer type of analysis that if a son could be condemned for 'so little' that surely he could be condemned for something much more serious? Or if not condemned, a more general analysis of what duties a child has and what options short of 'death for the kid's sake' might be in order. There is only reward of prolonged life (in ha aretz?) that appears to be associated with observance of the mitzvah. Is there punishment contemplated for its violation, and if so what form does our tradition contemplate? How would or does our tradition view the developing modern trend of parents suing children and children suing parents for things that might be classified as both Mamonot and Nefashot violations?

I respond:

Perhaps my explanation of mishnah five was not as clear as it should have been. The sages make quite clear that the lad is not put to death because of what he has done but because of what he might well be expected to do in the future. What he has done involves disobedience to his parents instruction and a kind of contempt of court – for he repeated his offence after having been warned by the court not to do so. Perhaps we should also add that the boy has stolen from his parents. None of these acts warrant the death penalty. The punishment for non-observance of the requirement to honour our parents is in the hands of the heavenly court and not the human court, and as we have seen today the punishment for theft is twofold restitution. This is why the sages stated quite clearly that the death penalty is meted out (in theory) to the riotous and rebellious son because of the future crimes of larceny and armed robbery that may be presumed to be his ultimate destiny. Furthermore, I think that it is important to remind ourselves of a point we made several times when studying Tractate Kiddushin: the law requiring us to honour our parents is directed at the adult not at the child: it is concerned with the duty of the adult to respect and provide for the aged parent.

---

I have also received the following communication from Reuven Boxman:

The statement "The riotous and rebellious son is condemned on account of his future" struck me, in the light of a conversation we had last night with one of our dinner guests, a political scientist. He related that recently the U.S. has happily experienced a significant drop in its crime rate, and that one social scientist published an analysis relating a significant fraction of this drop to the U.S. Supreme Court Decision in the case of Wade vs Roe (allowing abortion on demand) some twenty years ago. The agreement was that because of that decision, less children were born into circumstances which would statistically lead to a life of crime.

Reuven also sent me the following comment sent to him by his dinner-guest:

As the source for telling you about the research study, might I also add that it too is relevant to this shiur, for the children who turn into criminals are products of parents who (as Hirsch explains) also couldn't control their sexual urges (in the U.S. many of them are 13 years old!!), so that abortion is at least a "second chance" to lessen the future personal and social damage of their promiscuity.