Section II: Rehabilitation

2021 Maimonides Moot Court Competition

Source material from the Maimonides Moot Court Competition 2021

The Case of the Stolen Beam (תקנת השבין)

The following unit explores the rehabilitation process after one has committed various types of transgressions, crimes, or untrustworthy behavior. How should we view the process of reintegrating such a person into society? How can they regain our trust? What factors must be considered before offering such an individual a second chance? The upcoming sources will explore these questions and more, as we develop a framework for understanding what rehabilitation is all about and who it involves.

We will examine a number of ways in which halakhic authorities prioritized making the rehabilitation process as smooth as possible. However, we will also see instances in which stringencies were put in place before accepting certain individuals back into a community or a particular role.

1. If one steals an item and later wants to make amends, then according to Biblical law one must return the stolen item to the person from which it was stolen. The following dispute between Beit Shammai and Beit Hillel discusses a situation where, due to a later action taken by the thief, the process of returning the stolen item would be very costly. What happens in such circumstances? Does the actual stolen item still need to be returned?

גיטין נ״ה א:י״ב

תנו רבנן גזל מריש ובנאו בבירה ב"ש אומרים מקעקע כל הבירה כולה ומחזיר מריש לבעליו וב"ה אומרים אין לו אלא דמי מריש בלבד משום תקנת השבין:

Gittin 55a:12

The Sages taught: If one stole a beam and built it into a building, Beit Shammai say: He must destroy the entire building and return the beam to its owner. Beit Hillel say: The injured party receives only the value of the beam but not the beam itself, due to an ordinance instituted for those doing teshuvah.

In the above case, a person stole a beam and subsequently built it into a building—and now this person wants to repent. Beit Shammai says they are required to dismantle the building and return the beam. However, Beit Hillel is lenient on the individual who stole the beam, and rules that it is sufficient to return the value of the beam. Their explanation is that this decree is intended for the sake of those doing teshuvah.

The Mishnah rules in accordance with Beit Hillel, that it is sufficient to return the value of the beam. Even though in principle the stolen beam itself should be returned, doing so would make the teshuvah process more difficult and therefore less likely. Seemingly, underlying this position is a desire to make the teshuvah process less onerous. This compels us to consider where else this sensibility towards lightening the potential burdens of teshuvah could be applied.

2. The following text is another instance in the Talmud where a decree for the sake of those performing teshuvah is utilized. Whereas the text above dealt with lessening the burden on the one who stole, the following text will address how the person who was robbed from is called upon to make the teshuvah process more feasible—even at their own expense.

בבא קמא צ״ד ב:ה׳-ו׳

תנו רבנן: הגזלנין ומלוי ברבית שהחזירו, אין מקבלין מהן. והמקבל מהן, אין רוח חכמים נוחה הימנו. אמר רבי יוחנן: בימי רבי נשנית משנה זו, דתניא: מעשה באדם אחד שבקש לעשות תשובה. א"ל אשתו: "ריקה, אם אתה עושה תשובה אפילו אבנט אינו שלך." ונמנע ולא עשה תשובה. באותה שעה אמרו: הגזלנין ומלוי רביות שהחזירו, אין מקבלין מהם. והמקבל מהם אין רוח חכמים נוחה הימנו.

Bava Kamma 94b:5-6

The Sages taught: With regard to robbers or usurers that seek to return [the stolen item or the interest], one should not accept it from them. With regard to one who does accept it from them, the Sages are displeased with him. Rabbi Yochanan says: it was taught in the days of Rabbi Yehudah HaNasi: There was an incident regarding one who desired to repent. His wife said to him: “Empty one, if you repent then even the belt that you are wearing is not yours.” He refrained and did not repent. At that time, the Sages said: With regard to robbers or usurers that seek to return [the stolen item or the interest], one should not accept it from them. Concerning one who does accept it from them, the Sages are displeased with him.

The Talmud rules that when an individual aims to return a stolen object or ill-gotten money they received from charging interest, the other person should not accept it back. In stating how this ruling came to be, the Talmud tells a story of an individual who stopped doing teshuvah after realizing that the cost of returning all of his stolen possessions would be prohibitively expensive. Consequently, the Sages ruled that one should not accept back ill-gotten interest or stolen goods, so that the perpetrator will be more likely to do teshuvah.

3. The following text is a responsum of Rabbeinu Gershom. The question posed to him is about a kohen (priest) who converted to Christianity and later performed teshuvah. The kohen now seeks to reintegrate into the Jewish community. Is such a person allowed to perform priestly rituals and receive the honors granted to a kohen? While reading Rabbeinu Gershom’s reply, consider how it relates to the two Talmudic passages above.

מחזור ויטרי, הלכות שבת קכ״ה

ותשובה לשואלי על עסק כהן שנשתמד ועשה תשובה. אם ראוי לישא כפיו. ולקרות בתורה תחילה או לא:

כך דעתי נוטה... כיון שעשה תשובה ראוי לעלות לדוכן ולישא את כפיו ואע"ג דכת' "וקדשתו"... כיון שחזר חזרה בו קדושתו… "שובו אלי ואשובה אליכם." וכיון ששב קבלו המקום ומסכים על ידו בברכתו...

ועוד נמצאת אתה מרפה ידיהם של בעלי תשובה. ולא נכון לעשות כן. דא"ר יוחנן כל האומר מנשה (חטא) אין לו חלק לעולם הבא... ואם תאמר לא יעלה לדוכן ולא יקרא בתורה תחילה מהרהר בלבו לשמרו. ואו' אוי לה לאותה בושה אוי לה לאותה כלימה. וימנע מעשות תשובה.

Machzor Vitry, Laws of Shabbat 125

My answer to the one who asked whether a priest (kohen) who apostatized and then repented is fit to perform the priestly blessing or to be called up to the Torah for the first aliyah, or not.

My opinion is… since he performed teshuvah it is proper that he be called up for the priestly blessing, even though the verse says that such a person needs to be “sanctified.”...Since he returned [to Jewish practice], he is to be considered sanctified…As the verse states: “Return to me and I will return to you” (Malachi 3:7). Since he has done teshuvah, God accepts him and offers blessing through him...

Furthermore [were he not to resume his priestly roles] we would be discouraging him from performing teshuvah. And it is not proper to do this. As Rabbi Yohanan taught, “whoever says Menashe has no portion in the world to come [will discourage others from performing teshuvah]”... If you will say that he cannot perform the priestly blessing or get called up to the Torah for the first portion, he may rethink his decision. He will say, “Woe is to me for this embarrassment, woe is to me for this shame.” This will prevent him from doing teshuvah.

In replying to the question about a kohen who had converted to Christianity and later performed teshuvah, Rabbeinu Gershom ruled that the community should accept him wholeheartedly as a full-fledged kohen—even though the Torah requires a high level of sanctity for the kohen’s role. In addition to bringing support from Torah verses about the efficacy of teshuvah, a key part of his reasoning is that if he was disallowed from serving as a kohen, the future embarrassment of being excluded would prevent the kohen from doing teshuvah. In other words, Rabbeinu Gershom reasoned that this person would be less likely to perform teshuvah if he knew that his kohen status was permanently lost. In order to avoid an outcome where this kohen would be discouraged from performing teshuvah, Rabbeinu Gershom ruled that the community should accept him with open arms and grant him kohen status.

The Lying Butcher: Regaining Lost Trust

A key aspect of the rehabilitation process after one has committed a crime is regaining the trust of the community. Above, we explored how the rabbis instituted an “ordinance for those doing teshuvah” (תקנת השבין) to remove barriers that may prevent a person from performing teshuvah. In this section, we will add an important dimension to this conversation—how does the person performing teshuvah regain the trust of those who have been let down?
We will explore two situations in which individuals who betrayed the trust of their community subsequently attempt to regain their integrity.

4. The opening text is a Talmudic passage that deals with a butcher who was found to be selling non-kosher meat. In the passage, the rabbis discuss what the teshuvah process for this butcher must entail before the community can once again rely on his meat.

סנהדרין כ״ה א:י׳-י״ב

ההוא טבחא דאישתכח דנפקא טריפתא מתותי ידיה פסליה רב נחמן ועבריה אזל רבי מזיה וטופריה סבר רב נחמן לאכשוריה א"ל רבא דילמא איערומי קא מערים אלא מאי תקנתיה כדרב אידי בר אבין דאמר רב אידי בר אבין החשוד על הטריפות אין לו תקנה עד שילך למקום שאין מכירין אותו ויחזיר אבידה בדבר חשוב או שיוציא טריפה מתחת ידו בדבר חשוב משלו:

Sanhedrin 25a:10-12

There was a butcher about whom it was discovered that a tereifa emerged from his possession. Rav Nachman disqualified him and removed him from his position. The butcher went and grew his fingernails and his hair. Rav Nachhman thought to restore his status. Rava said to Rav Nachman: Perhaps he is being deceitful. Rather, how can he repair his status? It is in accordance with Rav Idi bar Avin, who says: One who is suspected of selling tereifot to others has no remedy until he goes to a locale where they do not recognize him and he returns a lost item of substantial value that he finds, or removes tereifa meat of significant value from his possession.

רש"י על סנהדרין כ״ה א:י״ב:ב׳

"ויחזיר אבידה" - אם ימצא אבידת חבירו דכיון דמחזיר אבידה הוא ודאי הדר ביה מחמדת ממון:

Rashi on Sanhedrin 25a:12:2

"And he returns a lost item [of significant value]": If he finds the lost object of his friend, since by returning it, he demonstrates he has overcome his lust for money.

In the case above, there is a dispute between Rav Nachman and Rava about what is required for this butcher to regain the trust of the community after fraudulently selling non-kosher meat. In Rav Nachman’s view, it is sufficient that the butcher displayed external signs of remorse. However, Rava was concerned that this was insufficient and required a significantly higher standard, based on a teaching from Rav Idi bar Avin. In the second text, Rashi explains that this higher standard requiring him to return a costly object or remove expensive non-kosher meat serves to demonstrate that he has overcome his unhealthy desire for wealth.

5. In the following commentary on this passage, Rabbeinu Nissim of Gerona (RaN) questions why Rava/Rav Idi bar Avin ruled that the butcher requires such a high standard of teshuvah in order for him to regain the community’s trust. The passage below begins with RaN offering two possibilities: one answer is quoted in the name of Ramban (Nachmanides), while the other is quoted in the name of Ramban’s student.

חידושי הר"ן סנהדרין כ"ה א

ותירץ הרמב"ן ז"ל שלפי שהיה טבח זה ממונה לרבים ורבים היו סומכים עליו החמירו עליו שלא למנותו עוד על הדבר וחששו שהיה מערים...ולא מצינו כן על שאר החשודין... והר"ר דוד תלמידו ז"ל הוסיף טעם אחר דהיינו טעמא שחששו דאערומי קא מערים לפי שהעבירוהו ממנויו וחששו שקבלתו אינה מלב ונפש אלא כדי שיחזירוהו למנויו...

R. Nissim of Gerona (RaN) on Sanhedrin 25b

Ramban answered that since the butcher was appointed in a public role, and the public was reliant on him, they were strict upon him not to give him another appointment on this matter and were suspicious that he was deceiving them…We don’t find these [high standards] about other people suspected [of transgressions.]

Rabbeinu David, the student of Ramban, added another reason why there was a suspicion that the butcher may be deceitful. Since they removed him from his position [as a butcher], there is a suspicion that his acceptance [of the need to perform teshuvah] is not truthful, but rather is in order to return to his position.

In this text, RaN cites two possibilities as to why the Talmud applies a strict standard for the butcher before he can return to his position. Ramban suggests it is due to the public reliance on his role as a butcher; Rabbeinu David suggests it is because we have reason to be suspicious of his ulterior motives.

Does Time Heal Everything?

In the previous section, we explored a disagreement regarding what the butcher must do before he can regain our trust. The following text will introduce another factor that is important to the rehabilitation process: time.
6. The question posed to Rav Hai Gaon is about a cantor (שליח צבור) about whom there was suspicion that he committed adultery. As a result, his congregation removed him from his role. The cantor then took on public signs of remorse such as fasting, and after some time, the congregation was unsure whether to reappoint this individual as their cantor. They addressed Rav Hai Gaon with this query.

כל בו קמ״ז:ל״ב

(לב) תשובה: שורת הדין שאין לך דבר שעומד בפני תשובה; אלא כל השבים שהקדוש ברוך הוא יודע כי נתחרטו על מה שעברו מן הכעור וכי שמו אל לבם שלא ישובו עוד לכמוהו, הוא מוחל להם. ובני אדם—אע״פ שאינן יודעין הנסתרות ואין להם אלא הנגלות—כשעבר זמן הרבה ואין נראה עליו לא בגלוי ולא בסתר דבר שלא כהוגן, והלב מאמין בו כי חזר, מקבלין אותו.

Kol Bo 147:32

Response: The letter of the law is that there is nothing which stands in the way of teshuvah; rather, anyone who does teshuvah, God knows that they have remorse from their ugly behavior. When they direct their hearts that they will not return to it, God forgives them. For human beings—even though they cannot know what it is hidden [i.e. a person’s feelings] and can only know what is revealed outwardly—when a significant amount of time has passed, and it does not appear that the person has acted inappropriately in public or in private, and one’s heart believes that he has done teshuvah, then we accept him.

In response to the question posed by the congregation, Rav Hai Gaon ruled that if a significant amount of time has passed since the cantor had acted in a suspicious manner, and if it seems that the cantor has turned a new leaf, then they should accept him back into their congregation.

7. The following source addresses rehabilitation in relationship to time through a different lens. How do we regard someone who performs teshuvah at the very end of their lives? Likewise, how do we regard someone who was righteous for most of their lives, and then rebels?

קידושין מ׳ ב:ג׳

ר"ש בן יוחי אומר: אפילו צדיק גמור כל ימיו ומרד באחרונה, איבד את הראשונות, שנאמר (יחזקאל לג, יב) "צדקת הצדיק לא תצילנו ביום פשעו". ואפילו רשע גמור כל ימיו ועשה תשובה באחרונה, אין מזכירים לו שוב רשעו, שנאמר (יחזקאל לג, יב) "ורשעת הרשע לא יכשל בה ביום שובו מרשעו".

Kiddushin 40b:3

Rabbi Shimon ben Yohai says: Even if one was completely righteous all their life and then rebelled by sinning at the end, their early merits are lost, as it is written: “The righteousness of the righteous shall not save one on the day of their transgression” (Ezekiel 33:12). And even if one was completely wicked all of one’s life and did teshuvah at the end, we do not recall their wickedness any longer, as it is written: “And as for the wickedness of the wicked, he shall not stumble over it on the day that he turns from his wickedness.”

8. The final source is a Talmudic text which explores a person’s standing after completing the teshuvah process.How does such a person compare to someone who has never sinned to begin with? The following passage will cite a dispute between two sages about this very question.

ברכות ל״ד ב:כ״ב-כ״ג

וּפְלִיגָא דְּרַבִּי אֲבָהוּ, דְּאָמַר רַבִּי אֲבָהוּ: מָקוֹם שֶׁבַּעֲלֵי תְשׁוּבָה עוֹמְדִין — צַדִּיקִים גְּמוּרִים אֵינָם עוֹמְדִין, שֶׁנֶּאֱמַר: ״שָׁלוֹם שָׁלוֹם לָרָחוֹק וְלַקָּרוֹב״. ״לָרָחוֹק״ בְּרֵישָׁא, וַהֲדַר ״לַקָּרוֹב״. וְרַבִּי יוֹחָנָן אָמַר לְךָ: מַאי ״רָחוֹק״ — שֶׁהָיָה רָחוֹק מִדְּבַר עֲבֵירָה מֵעִיקָּרָא. וּמַאי ״קָרוֹב״ — שֶׁהָיָה קָרוֹב לִדְבַר עֲבֵירָה, וְנִתְרַחֵק מִמֶּנּוּ הַשְׁתָּא.

Berakhot 34b:22-23

Rabbi Abbahu said: In the place where those who have done teshuvah stand, even the completely righteous do not stand, as it is stated: “Peace, peace upon those who are far and near.” Those who are “far” come first, and then those are “close.” Rabbi Yohanan would reply: What is the meaning of one who is “far?” This refers to the completely righteous who were distant from sin from the outset. What is meant by one who is “near?” This refers to one who was close to transgression and now has distanced themself from it.

In this passage, Rabbi Abahu and Rabbi Yohanan disagree about who is at a higher level: one who sinned and then performed teshuvah (Rabbi Abbahu) or one who has distanced themself from sin from the outset (Rabbi Yohanan). The dispute is centered around how to read a verse in Isaiah which implies that those who are “far” will be redeemed before those who are “near.” Rabbi Abbahu reads “far” as people who had sinned and then performed teshuvah; Rabbi Yohanan reads “far” to describe people who have alway been far from sin.

Unit 2 Summary: In this unit, we have explored a number of ways in which the rabbis prioritized making the rehabilitation process less onerous. For example, one who stole a beam need not dismantle their building in order to return the beam to its owner. However, in the case of the butcher found to be fraudulently selling non-kosher meat, we saw how the rabbis required a higher standard before the community could place their trust in him. We have also explored how time comes into the conversation in a number of ways, such as the ruling that a cantor could resume his role after a significant amount of time had passed since his last known transgression.
Questions for further reflection

Reflecting broadly on these sources, what values underlie the rehabilitation process? Do they ever come into conflict with other values?
Which text resonates most with you? Which source did you find most challenging to accept?
After exploring these texts, how does this approach towards rehabilitation influence your understanding of “Beyond the Box?"