The “Black Ops” of Beit Din by Benjy Shulman


The beginning Pesukim of Parashat Pinchas are a continuation of the final narrative of Parashat Balak, which concerns the actions of the Nasi of Sheivet Shimon, Zimri Ben Salu, as well as Kozbi the Midianit. In the narrative, Zimri cohabitates with Kozbi, a non-Jewish woman, in the public view of the nation. Pinchas, a Kohen, stabs Zimri and Kozbi in a rush of fury and in doing so stops the plague which had been ravaging Bnei Yisrael at the time. Then, at the beginning of next Sidra, Parashat Pinchas, Hashem relates to Moshe, “Pinchas, the son of Elazar, the son of Aharon the Kohen, has turned My wrath away from Bnei Yisrael, in that he was very jealous for My sake among them, so that I did not consume Bnei Yisrael in My jealousy” (BeMidbar 25:11). From this ordeal, the Gemara (Avodah Zarah 36b) derives the Halachah of HaBo’el Aramit Kana’im Pog’in Bo, that zealots may strike one who has relations with a non-Jewish woman. But what truly is this Halachah and to what extent is it applicable today?

The Halacha of Kana’im Pog’in Bo is found in the Mishnah (Sanhedrin 81b). Rashi (ad. loc. Kana’im Pog’in Bo) explains that the zealot who wishes to take action must have the intention to defend Hashem’s name and Torah; he may not act simply because of a personal grudge or the like. The Gemara, commenting on the Mishnah, adds that Beit Din may not issue a ruling to someone who inquires as to whether or not to kill the sinner. The reason for this is possibly that either that the zealot must act out of fury in the heat of the moment or that he is evidently not zealous enough if he first asks Beit Din whether to kill the person. The Gemara goes on to discuss other Halachot of Kana’im Pog’in Bo that reflect the principle’s unique nature. For instance, if Zimri was to separate from Kozbi before Pinchas killed them, Pinchas would be Chayav (obligated) for killing them. Furthermore, if Zimri was to kill Pinchas, Zimri would not be Chayav, as Pinchas was a Rodef (one who seriously threatens to kill). All of these Halachot point in one direction, namely, that the Din of Kana’im Pog’in Bo is not subject to the jurisdiction of the Jewish judicial system. This would make it seem that Kana’im Pog’in Bo always applies, even when there is no Beit Din or Beit HaMikdash. To clarify this issue and others, let us examine the positions of various Rishonim, who in their analysis reveal much about the character of the Halachah of Kana’im Pog’in Bo.

The Mishneh LaMelech, for one, asserts that the concept of Kana’im Pog’in Bo is not a Chovah, an obligatory Mitzvah, but rather a Reshut, an optional Mitzvah. This means that a person would have no Chiyuv to kill someone like Zimri, but may do so if he wanted to. There are two approaches to understanding the Mishneh LaMelech’s opinion. One is that taking action is encouraged by God; it is a Reshut only because we are not sure if people who perform it will have the genuine intention of defending God’s name. Alternatively, we can understand the Reshut as follows: In truth, Hashem doesn’t want the zealot to kill the sinner but He does not command us to punish him if he lets his emotions overtake him. This Chakirah (analytical query) could have serious practical ramifications, as it could decide whether one would take action or not.

The Yerushalmi adopts the second approach. There, the Gemara states that Pinchas’s actions did not conform to the will of the Chachamim and that they wanted to place him in Cheirem (excommunication) as punishment. The reason for this was most likely that the Chachamim understood the problems with a society in which anyone may kill anyone whom he thinks is doing something wrong. While it might have been appropriate in Pinchas’s case, a bystander may have misconstrued the event as justification for taking justice into one’s own hands, and consequently might have started to kill people for mixing meat and milk or violating any other lesser prohibition. The Yerushalmi then explains that Pinchas was truthfully obligated to be placed into Cheirem, but he was given reprieve from his punishment due to Divine intervention. Pinchas, therefore, was the exception, not the status quo. Why, then, did the Chachamim punish Pinchas if God approved of his actions? A simple explanation is that “Lo BaShamayim Hi,” “[The Torah] is not in the heavens” (Devarim 30:12), and thus we follow the Halachic decisions of the Chachamim even if they differ with Hashem’s decision. Clearly, the Yerushalmi holds that Kana’im Pog’in Bo is not endorsed by Beit Din and is in no way similar to Mitat Beit Din (executions subject to the jurisdiction of Beit Din).

On the other side of the argument is the Margilot HaYam, who bases his position on key points of the Yad Ramah and the Ran regarding this topic. The Yad Ramah maintains, like the Mishneh LaMelech, that Kana’im Pog’in Bo is a Reshut. He then goes on to explain the Gemara (cited above) which states that if a zealot were to approach Beit Din and inquire whether to kill the sinner or not the Beit Din was to not give him a Halachic ruling. Why is this so? Says the Yad Ramah, if Beit Din were to give express permission to the zealot to take action, he would thereby become a Shali’ach (messenger) of Beit Din. This, needless to say, is a problem, as Beit Din may not involve itself in a case of HaBo’el Aramit Kana’im Pog’in Bo. According to the Yad Ramah, therefore, though Kana’im Pog’in Bo might not be frowned upon as the Yerushalmi maintains, it is certainly out of Beit Din’s sphere of influence. 

That is not to say that Kana’im Pog’in Bo is not a positive action. In fact, the Ran suggests in a most novel fashion that while Kana’im Pog’in Bo is a Reshut it is also a Mitzvah. Obviously, then, the Ran too disagrees with the Yerushalmi, which asserts that Kana’im Pog’in Bo is problematic.

On a practical level, what would be the Halachah today in a case like that of Zimri and Kozbi? Would there be a Mitzvah to kill the sinner, would it be a neutral Reshut that Beit Din consents to, or would one who takes action be deserving of Cheirem? One thing is for certain – the Shulchan Aruch does not codify the Halachah of Kana’im Pog’in Bo. Why is this so? The Margilot HaYam explains that it is because the Gemara cited above wrote that the Beit Din may not give a Halachic ruling to a zealot, and thus Kana’im Pog’in Bo is not subject to the standard protocols of Halachic decision-making. This could be for one of two reasons. It could be that Beit Din may not make a Pesak Halachah because of the Yerushalmi’s understanding that Kana’im Pog’in Bo is not ideal. Alternatively, perhaps Kana’im Pog’in Bo is ideal, maybe even a Mitzvah, but it is outside of the domain of Pesak and Beit Din. The Margilot HaYam then presents a second reason as to why the concept of Kana’im Pog’in Bo is not included in the Shulchan Aruch: Because it is under the jurisdiction of Beit Din and cannot be performed without a ruling issued by Beit Din. At the same time, however, Beit Din does not openly endorse the fulfillment of Kana’im Pog’in Bo. This second approach is surprising. Why does Beit Din not support zealots if the Halachah of Kana’im Pog’in Bo is under its authority?

Rav Eli Reich of Yeshivat Sha’alvim answers this question by calling the Halachah of Kana’im Pog’in Bo the “Black Ops” of Beit Din. It is as if the zealot taking action is part of God’s “undercover army” – Beit Din approves of his actions, but the actions are not meant to be publicized. This fits well with the Gemara’s statement in that Beit Din may not openly instruct a person whether or not to kill the sinner because the practice of this Halachah is supposed to be kept private. What does this all mean in terms of Halachah LeMa’aseh? According to the Margilot HaYam’s first explanation, Kana’im Pog’in Bo could theoretically be practiced today as it does not require a Beit Din. On the other hand, according to the second approach, Kana’im Pog’in Bo could not be practiced today, as it is subject to the Halachic decisions of a Beit Din for Dinei Nefashot (capital cases), which we do not have presently.

Editor’s Note:  Halacha forbids taking the law into one’s hands in today’s circumstances, due to Dina DeMalchuta Dina, the Halachic obligation to obey civil law, amongst other reasons.  

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