361 —על פסקי דין, פסקי שמים, ומעמד גברא קטילא

Shalom u'Vrachah! ... a) The case under discussion is not analogous, because the Torah entrusted all laws of Erechin and Damim to earthly courts. Therefore, it can be said that they too fall under the category that a judge rules only on what is revealed and not on what is hidden or in thought. As explained (see Shu"t Nodah B'Yehudah Orach Chaim Mahadura Kama siman 35; Shu"t Chaim Sha'al vol. II siman 62; Petach HaSha'ar to Shu"t Tuv Taam V'Daas; Daas Mehadurat Tiferes Hilchos Treifos; also see Rambam Hilchos Avodah Zarah ch. 4 halacha 6; and what is written in Shu"t Shem Mishimon to R' Shimon Pollak Mahadura Kama Choshen Mishpat siman 62 in his explanation of Bava Basra 159a regarding Moshe being invalid to testify for his father-in-law, and Shabbos 118b "I know myself that I am not a Kohen," and Maharsha Zevachim 101 regarding Pinchas not seeing Miriam's afflictions due to gilgulim—this needs further study) regarding teshuvah not being effective for punishments by earthly courts. This is not so in our case which pertains only to the heavenly court. Thus, just as liability can arise in this manner, so too can exemption. Note there is an intermediate category between these two types: cases where the ruling is in revealed Torah but the punishment is by Heaven; here, heartfelt teshuvah and matters of the hidden are effective (see Makkos 13b; also Tosafos Kesubos 30b; Mishnah Sotah ch.3; further discussion elsewhere).

b) Further study is needed regarding Devarim 31:28 (and according to Tosafos Avodah Zarah 17a) and from Pesikta cited in Yalkut Shimoni remez 191: "He called Michael and Gabriel... through an elder and through witnesses."

c) Regarding "Lo BaShamayim Hi"—see discussions in She'elot U'Teshuvot Shem HaGedolim by Chida vol. I letter Yud siman 224; Sdei Chemed Klalim letter Aleph subparagraphs 94, 101, 112; Shu"t Chatam Sofer vol. VI siman 198; Chida's commentary on Avos ch.6; introduction to Keset HaSofer on Shu"t Min HaShamayim; and elsewhere. Also see Mevo HaShearim Parshas Vayishlach.

d) The distinction is simple: according to those who disagree with Rashi, a goses (moribund person) is only considered dead potentially (be-koach), since his action has effect, and his status ruled by court is also potentially dead. Thus, there is no addition in the state of goses over one whose verdict was decided by court—both are only potentially dead—unlike Rashi's view. In other words: the explanation of the dispute between Rashi and his opponents about goses is whether he is dead only potentially or also actually (at least for most laws), whereas one whose verdict was decided by court is agreed by all to be only potentially dead. It would be forced to say—according to the first opinion—that goses adds that he becomes potentially dead also from his body’s side. Since potential death does not suffice, neither does potential bodily death suffice.

e) One could say that the intent of Ohr Sameach’s language (though I have not seen it inside) refers to a person for whom the commandment "Do not murder" does not apply. This answers what was asked on Ohr Sameach.

f) As already stated orally: there are two questions here: (1) From where do we know that through the court’s verdict itself a person becomes a gavra ketila? (2) How can this be explained? In answer to question two—the reasoning is simple: we are discussing someone whose halachos and laws have changed according to Torah once his verdict has been decided. Therefore it does not matter that no action has occurred physically since there has been a change (even if imperceptible) according to Torah’s ruling—and thus this changes his status according to Torah.

g) On the contrary! If even in capital cases—which happened extremely rarely—they did not wish to abolish them, how much more so would it have been incomprehensible had they abolished lashes! His question why it does not explicitly say that lashes were never abolished can be answered several ways: (a) When our Sages taught that capital law was never abolished they were still judging cases involving lashes as well; later there was no need to inform us since it follows logically as above. (b) The punishment of lashes relates to "and your brother shall be degraded before you" (Makkos 22b), so there’s nothing novel about telling us lashes were never abolished since this happens daily—unlike capital law which we do not see fulfilled as described in Sanhedrin tractate—thus we are informed that someone falling from a roof etc., substitutes for stoning etc.

h) I wonder if this reason holds up—for according to this view one who stones someone liable for strangulation would also be exempt and vice versa! How then does he fulfill his obligation? And if we distinguish that at least he fulfills some shared aspect among all capital cases—that here too it’s "Do not murder"—then similarly with lashes one could say so.

This continues from the previous letter written as an answer to questions from R' Sh... Ribkin (published in Yagdil Torah NY issue 41 siman 58), as well as on the previous letter itself. Printed in Yagdil Torah NY issue 41 siman 52; Likkutei Sichos vol XVII p.525. In She'elot U'Teshuvot Shem HaGedolim there are publisher's notes copied here:

a) Answering whether—as written above—that there’s no difference between one whose verdict was decided by an earthly court or heavenly court—if Eliyahu were to come and tell us clearly that so-and-so had their death sentence decided by Heavenly Court, then for that person Erechin and Damim would no longer apply.

b) On what was written above—that angels are unfit as witnesses.

c) On what was written above—that Eliyahu isn’t believed due to "Lo BaShamayim Hi," nor do we say "Lo BaShamayim Hi" regarding doubt about facts—and see also Igros Kodesh Admor Maharayatz vol II letter 834.

d) Answering: Even if we say—as above—that Admor Hazaken meant Rashi’s opinion, why did Admor Hazaken need goses being considered like dead? For even without this he’d be considered like dead once his verdict was decided by Heavenly Court.

e) Hilchos Rotzeach ch.2 halacha 9—that murder isn’t considered “permitted from its general rule” because “the court puts someone to death so anyone who kills him after sentencing is exempt but killing someone undeserving remains forbidden except when ruled by court… Afterward he becomes gavra ketila.” The questioner asks: Seemingly, it’s not just the court’s verdict alone making him gavra ketila but rather because afterward he will actually be killed.

f) Answering: How does someone become gavra ketila through just a court ruling when nothing physical has happened?

g) On what was written above—that only capital punishment wasn’t abolished but lashes were.

h) On what was written above—that when someone sentenced for death penalty is killed by another person—the killer isn’t exempt because he counts as gavra ketila but rather because every killer thereby fulfills capital law upon him.

Summary

This letter explores complex distinctions between earthly versus heavenly legal rulings in Halacha, clarifying how status changes like 'gavra ketila' occur through judicial decree alone—even without physical action—and addresses nuanced questions about testimony, punishment categories, and their spiritual implications.