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Rabbi Jonathan I. Rosenblatt
Rabbi Gidon Rothstein
Associate Rabbi
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Rabbi Gidon Rothstein's Halakhah in Brief #76

Extirpating Evil

At last week's OU Convention-- an interesting and enjoyable event on several grounds, some of which I will address this week in the Main Shul, be"h-- Elizabeth gave a short talk on legal ethics. In the same session, R. Yona Reiss, the administrator of the Beth Din of America and a fine talmid hakham in his own right, quoted the opinion of R. Meshullam Roth and of R. Hershel Shachter that it is prohibited to serve as a defense attorney for someone who committed a crime. As a source for this notion, they mention the phrase in the Torah u-viarta hara mi-kirbekha, and you shall extirpate evil from your midst.

On the specific question--that of serving as a defense attorney-- R. Michael Broyde has argued that R. Shachter's reasoning applies only to one whom the attorney knows to be guilty. In many cases, however, the defendant denies guilt, and R. Broyde believes that allows the lawyer to defend him even if the preponderance of evidence suggests the defendant actually did commit the crime. Even when the lawyer knows that the defendant committed the crime, he might be able to argue other aspects of the case, such as the defendant's temporary insanity, or for conviction on a lesser charge. Finally, he notes that other authorities, notably Arukh la-Ner, read the crucial medieval opinions differently from the Maharshal, the basis for R. Shachter's opinion, and would allow defending even a clearly guilty man.

But that's not the point that I wanted to study this week. The use of the concept of u-viarta hara mikirbekha for the case of an American Jewish lawyer was what struck me as surprising. In my ignorance, I had always taken the phrase as applying to specific cases of capital punishment in the Torah, not to a general concept. With a little bit of checking (thank you Bar-Ilan CD-Rom), I found out that the Sifre in Devarim (which is the Midrash Halakhah) uses this phrase as a general requirement, to extirpate the osei hara, the perpretrators of evil, from the Jewish people. Some of the applications of the principle are very interesting, and relate to the question of how much of an obligation we currently have to remove evil from our midst.

First, the gemara applies this concept to animals as well. That is, certain kinds of animals can be held liable if they kill humans (meaning that in the times of the Temple, they would be judged and put to death in a human court; for discussion, see the Mishnayot in Sanhedrin with the accompanying gemara); the gemara assumes that bringing such animals to justice qualifies as a fulfillment of u-viarta. Similarly, it is widely assumed that the obligation to bear witness against those who have committed a crime stems from u-viarta. Finally (in this group of ideas), Ramban does not count the four different forms of death penalty listed by the Torah as separate mitsvot, since he sees them all as subordinate to u-viarta. In his perspective, the way in which courts might have punished someone (including different forms of capital punishment) were simply the method to fulfilling the Torah's actual concern, u-viarta, extirpating evil from our midst.

All of that, however, only applies during the times of the Temple, when there were courts functioning in their full capacities--does u-viarta apply in any ways to us today? Absolutely. First, in a way that was post-Temple, but is no longer relevant, one of the justifications for killing moserim was u-viarta. Mosrim, to digress for a moment, were people who betrayed Jews to governments that would take their money and/or lives for no good reason. In such circumstances-- a corrupt government that judged Jews differently from others and capriciously-- such informants were seen as a grave danger to the community, and could be killed if necessary. Even when the rabbinic authorities in a town decided not to kill a moser, or any other kind of evildoer, -u-viarta was seen as providing warrant to expel such a person from the community. This example, while not directly applicable to the US or Israel, nonetheless shows that u-viarta as a halakhic concept is still seen as being in full force.

Even more relevant, R. Yonah in Sha`arei Teshuvah lists among those who are guilty of hanufah, of inappropriately flattering evildoers, those who could effectively rebuke their fellows and refrain from so doing. Such a person, R. Yonah says, violates the positive requirement of u-viarta. To that end, he thinks every community has a requirement to set up an official mokhiah, someone whose job it is to note and critique the behavior of the community, to help them grow in their service of God, and so that they, as a community, fulfill the commandment of u-viarta. Here, already, we have a full-blown notion of u-viarta as requiring every Jew (and every Jewish community) to remove evil from its midst, with that evil defined not only as capital crimes but as all crimes, and the obligation as applying to all times and places.

What I don't think any of the sources that I have seen demonstrate, however, is an obligation upon Jews to remove the evil from a non-Jewish society. In all the cases that I saw, u-viarta applied to a Jew extirpating evil from within the society within which he lived. The non-Jewish milieu of the exile, while it might obligate us to act as good citizens (the broad principle of dina de-malkhuta), does not, as far as I saw, add the obligation of u-viarta. That would mean, it seems to me, that my obligation to serve as a witness about a crime is no greater for me than for any other citizen of the US. In turn, that would suggest, that serving as a defense attorney would be acceptable, since I am in doing so supporting the US criminal justice system, not subverting it.

One could perhaps argue that my reasoning applies to non-Jewish defendants (since they clearly inhabit the non-Jewish society that I have suggested does not have to live up to the higher standard of u-viarta), but Jewish defendants would be different. Even here, we could say that when Jews are living in a country where they are not separated from the general society (in contrast to Europe, where they were often given rights of self-rule), the obligation of u-viarta does not apply, since the society is not ours to run. There are other interesting discussions of u-viarta, which I may take up in a future sheet. Shabbat Shalom.



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