Halakhah for Genesis 6:13

Do educators enjoy a halachic right to confiscate items from students if those items are interfering with the learning in the classroom? The prohibition of theft is quite serious, as Chazal teach (Sanhedrin 108a, cited in Rashi to Breishit 6:13 s.v. Ki Malah) that the judgment of the generation of the flood was sealed due to its stealing. Thus, we must carefully investigate as to whether Halachah grants this right to educators.

And this is the intention of our rabbis z”l, when they say, “All who judge a judgement truthfully, it’s as if he is a partner with God in the creation of the world,” because God created the world to continue and the wicked who steal and commit acts of violence ruin the world through their actions. And similarly we find regarding the generation of the flood that the decree of their judgement was sealed only because of theft, as it is written, (Genesis 6:11) “For the earth is filled with violence,” and it says after this, (Genesis 6:13) “I will destroy them with the earth”. What emerges is that the judge who breaks the high arms of the wicked keeps the world going and completes the will of the Creator, blessed is His name, who created it to keep going, and it is as if they become partners with the Holy One ,Blessed Be He, in the creation. Abraham our forefather didn’t know God, and He called him (Isaiah 41:8) “My beloved” because he walked in the ways of justice and guided his children, as it is written, (Genesis 18:19) “For I have known him, to the end that he may command his children and his household after him, that they may keep the way of God, to do righteousness and justice…” And Moses our teacher a”h, master of all prophets, took advice from Yitro with regards to justice, to establish judges to caution Israel and to command them through justice, and God agreed with this. And Joshua afterwards established a covenant with Israel to serve God, he left his last word as justice, as it is written, (Joshua 24:25) “On that day Joshua made a covenant for the people, and there at Shechem he reaffirmed for them laws and justice.” [This is] because justice is the foundation and the great principle in the service of God, and following [Abraham] have each and every judge judged their generation, and bring them back from their evil ways to service of God to go in the way that Abraham paved to do righteousness and justice, and through this were they [i.e. the Jewish people] were saved from their enemies until Samuel the prophet came, God-faithful, (1 Samuel 7:15-16) “who judged Israel all the days of his life. And he went on a circuit year by year to Bethel, Gilgal, and Mizpah. And he judged Israel in all these places.” And our sages tell us that the path he took one year was not the one he took the next, so that he could turn the hearts of the entire nation toward service of God, and to walk in the way of Abraham our forefather a”h, and he anointed David to be the king of Israel, and he too walked in the ways of God from all that was in front of him, as it is written,(2 Samuel 8:15) “And David did justice and righteousness. (1 Chronicles 11:8) “And Joab restored the rest of the city.” And our sages tell us that in the merit of the justice and righteousness of David, Joab restored the rest of the city, and had his child [Solomon] continue after him, the “Yedid Hashem”, who loved to go in the laws of his father David and would ask from God an understanding, listening heart to judge his people, to understand between good and bad, and it was good in God’s eyes, that which he asked regarding this. And He gave him a wise and understanding heart which has never been before, and no one has been like him since, and all of Israel was afraid of him because they saw that the wisdom of God was in his heart to do justice. And also Jehoshaphat, who took the paths of his father and raised his heart in the ways of God, was strengthened in justice, and he appointed judges in every city, and he said to the judges, “See what you do, for you are not judging for man but for God, and with you shall be justice.” Josiah as well, that Scripture testifies about him, “And no king was like him before, who returned to God with all his heart.” And also the King Messiah, who will be revealed speedily in our days, is praised by Scripture regarding justice, and it is written, (Isaiah 11:4) “And he will judge the destitute with justice, and decide with equity for the meek of the earth…” And according to the greatness of his reward will be the punishment for those who void and pervert it, as it is taught, “Destruction comes to the word based on lack of law and on the perversion of law.” And so did David say, (Psalms 119:121) “I have done justice and righteousness, leave me not to my oppressors.” This implies that without justice, he would have been left in the hands off oppressors. And Jerusalem was only destroyed, and Israel only exiled, because of the neglecting of justice, as it is written, (Isaiah 1:21) “She once was full of justice; righteousness used to dwell in her-- but now murderers.”... And God wants it more than all the sacrifices, as it is written, “Doing righteousness and justice is choicier to God than the zevach offerings.” It does not says “than sin and burnt offerings,” but rather “than zevach offerings.”

(Alef) The Psalmist said in Ps. 50:18, 20, “When you see a thief, you fall in with him, and throw in your lot with adulterers. You are busy maligning your brother, defaming the son of your mother.” It appears to me [that this can be explained] according to that which is written in Netsach Israel, chapter 25:⁶⁸Maharal, Netsach Yisrael, pp. 126-127 in London edition.
We were asked, “How is it that Israelites are constantly yearning to [do] bad, etc.? As he seeks evil for the one who is his compatriot in Torah and in the commandments. And [yet] the Torah states (Lev. 19:18), ‘and you shall love your neighbor as yourself.’” And I answered him, etc. However this trait is not in Israel from the angle of ‘an evil soul desires evil.’ As from the angle of their essence, this holy people is deserving of all the importance and status, etc. And the one who is important based on his own nature will [naturally] seek status (and this is what causes the Jews to hurt each other). As you will not find a villager jealous of a great minister, but rather a sage of another sage, a wealthy man of a wealthy man and a strong man of a strong man, etc. Rather this thing comes from [their appropriate] sense of importance. And the proof to this is that it is perfectly obvious that when one of them is in distress, all of them step forward like ‘a brother for adversity.’ And that is because Israel is one nation, etc. And it is not like the traits of licentiousness, etc., as that thing would show great lowliness, etc. And they are stiff-necked from repenting, etc. Because they are far from physicality, they are not [easily] impacted, but rather hold on to their traits, etc. [See there.]
And for this reason, he said, “When you see a thief, you fall in with him, and throw in your lot with adulterers” – and that is from the side of crass physicality and it is lowliness. But, “You are busy maligning your brother, etc.,” is from the side of an elevated form, and as is written in Netsach Yisrael. And they are two opposites of one issue. And ‘there should not be [lowliness] like this in Israel’ – the holy people that comes from a good nature. And that which is in Parashat Netzaivm (Deut. 29:21-26) is elucidated by this:
And later generations will ask—the children who succeed you, and foreigners who come from distant lands and see the plagues and diseases that the Lord has inflicted upon that land. All its soil burnt by sulfur and salt, etc. And all the nations will say, “Why did the Lord do thus to this land; wherefore that awful wrath?” And they will be told, “Because they forsook the covenant that the Lord, etc. And they turned to the service of other gods and worshiped them – gods whom they had not known and whom He had not allotted to them. So the Lord was incensed at that land, etc.”
And Rashi explained [the phrase], “whom they had not known,” [as] they had not known the strength of divinity in them. And Onkelos translated [it as, these gods] did not do good to them – as the one they selected for a god did not give them any inheritance or portion. See there. And at first glance, [this needs] precision – as had it given them an inheritance and a portion, the ‘prohibition [against worshiping it] would still stand in its place. [It is] as we expound in the Gemara,⁶⁹See Bamidbar Rabbah 20:9. “He exalts (masgi, which can also be read as fools) nations, then destroys them” (Job 12:23); such that it appears to them that they are healed by idolatry, etc. And see that with the generation of the flood it is written (Gen. 6:13), “and behold I will destroy them with the earth.” And the Rabbis, may their memory be blessed, expounded [it as] (Bereishit Rabbah 31:7), “with the land” – three handbreadths of the depth of a plow were despoiled. And the sin of the land was that the Lord said (Gen. 1:11) that the land should give forth “trees of fruit” – that the taste of the tree be like the fruit; but it made “trees that made fruit” (Gen. 1:12).⁷⁰Bereishit Rabbah 5:9. [It did this] because [its] material was coarse; and this caused man to incline towards physicality. And [so] the Lord said (Gen. 3:17), “Cursed is the earth for the sake of man” – as the damage was evident in man. And for this reason, [people] in the generation of the flood also sinned in physicality – violent theft, sexual immorality and murder; and this was because of the sin of the land. And therefore it was punished. And in the Guide⁷¹Guide for the Perplexed 1:36., [Rambam] wrote that we only find [the terms], awful wrath and jealousy [attributed to God] with idolatry, [since it is understandable that] the Lord has awful wrath about this. See there. But the sin of idolatry is from the angle of the form (the spiritual side) – and that it is the loss of the intellect, as it is written in Gur Aryeh.⁷²Perhaps the reference is to Gur Aryeh on Exodus 22:30. That is why the verse stated, “And all the nations will say, ‘Why did the Lord do thus to this land’” – since if their sin was from the spiritual side, the land did not sin. But if we say that the sin was from the side of physicality; you would still ask, “‘wherefore that awful wrath,’” as this is only with idolatry – as is written in the Guide – and that is from the angle of the intellect. “And they will be told, ‘Because they forsook, etc. and worshiped other gods’” – and the awful wrath was for that. And “whom they had not known and whom He had not allotted to them” – meaning that they did not apportion them any good and they did not know them [to be] with divine powers, and this was not from a confused intellect, such that ‘He fools the nations.’ Rather it was from the side of crass physicality that [such] anarchy was pleasing to them. And that was the sin of the land, and hence, “all its soil was burnt.” However, if people do righteous deeds, ‘the desolate land will be worked.’

The same author, Teshuvot Radvaz, IV, no. 1,357 (286) responded in a similar vein to another query as well. A divorce was executed on behalf of a woman accused of adultery on the condition that the wife not marry her paramour. It became evident that, despite the condition, the couple intended to marry with the result that the get would be nullified retroactively. Radvaz was asked whether it would be appropriate for the first husband to execute a second, unconditional divorce in order to preserve the couple from the sin of adultery. Radvaz responded by noting that, even if she were properly divorced by means of a second, unconditional get, the wife would remain forbidden to her paramour.²⁷Cf., however, Iggerot Mosheh, Even ha-Ezer, III, no. 5 and IV, no. 4, who adopts a different position with regard to obviation of mamzerut, or bastardry. Iggerot Mosheh contends that the concern in preventing bastardy is not for the sinner but reflects a societal concern for prevention of future unsuspecting marriage between mamzerim and persons of legitimate birth. In addition, as stated in Bereshit Rabbah 26:10, cited by Rashi, Genesis 6:13, mamzerut brings in its wake physical and social ills “and kills both good and evil.” Thus, in striving to diminish instances of adultery, society’s concern is not the spiritual welfare of the sinner but the interests of its own innocent members. See also Teshuvot Ḥelkat Ya’akov, II, no. 16 and III, no. 31, sec. 5 and ibid., note 1 as well R. Joseph Konwitz, Teshuvot Divrei Yosef, no. 9.
See also R. Ben-Zion Uziel, Piskei Uzi’el be-She’elot ha-Zman, no. 63, sec. 2, who implicitly accepts his interlocutor’s contention that hal’itehu la-rasha is irrelevant when the concern is the benefit of the community but dismisses it as not germane in the case of a woman seeking to convert to Judaism in contemplation of marriage to a kohen. Although the infraction of consorting with a person with whom one has had a previous adulterous liaison is far less severe than adultery itself, nevertheless, declares Radvaz, the principle "gorge the wicked" obviates any need to mitigate the transgression.²⁸Cf., Teshuvot Sho’el u-Meshiv, I, no. 5. Similarly, Teshuvot Radvaz, III, no. 873, refuses to sanction a religious marriage ceremony for a couple already civilly married because the parties were suspected of having engaged in a sexual liaison while the woman was yet married to another man. Teshuvot Maharsham, VII, nos. 104 and 106, forbade relaxation of the rabbinic restriction against remarriage of a woman during the period of lactation in order to avoid violation of the laws of niddah. Teshuvot Ḥelkat Ya’akov, I, no. 13, applies the principle hal’itehu la-rasha in forbidding the conversion of a woman of whom it is known that she will transgress the laws of family purity. [Cf., however, idem, I, no. 142, regarding non-interference in the marriage of a divorcée to a kohen in order to assure the execution of a get.] Piskei Uzi’el be-She’elot ha-Zman, no. 63, sec. 2, invokes the principle of hal’itehu la-rasha in refusing to convert a gentile woman married to a kohen but cf., ibid., no. 60 and idem, Mishpetei Uzi’el, I, Yoreh De’ah, no. 14, Yoreh De’ah, II, nos. 53 and 58 and Even ha-Ezer, II, no. 25. Many other authorities similarly refuse to sanction a lesser infraction in order to avoid a graver infraction. See, inter alia, Teshuvot Radvaz, IV, no. 1,357 (286) and VII, no. 11; Teshuvot Ḥatam Sofer, Even ha-Ezer, I, no. 36; R. Judah Aszod, Teshuvot Maharya, Even ha-Ezer, II, no. 140; R. Shlomoh Kluger, Teshuvot Ha-Elef Lekha Shlomoh, Even ha-Ezer, no. 92; R. Yechiel Ya’akov Weinberg, Seridei Esh, II, no. 44, s.v. ve-ra’iti; R. Ya’akov Yitzchak Weisz, Teshuvot Minḥat Yiẓḥak, VI, no. 106; Ẓiẓ Eli’ezer, VII, no. 22, IX, no. 36, XI, no. 55, and XX, no. 1; R. Betzalel Stern, Teshuvot Be-Ẓel ha-Ḥokhmah, I, no. 27; and R. Ovadiah Yosef, Teshuvot Yabi’a Omer, I, Yoreh De’ah, no. 15, sec. 15 and IV, Yoreh De’ah, no. 7, sec. 4. Ḥelkat Ya’akov, I, no. 107, sec. 10, refuses to allow compromise even with regard to matters of established custom in order to prevent some individuals from eating non-kosher food. Cf., however, Rambam, cited infra, notes 53-54 and accompanying text. See also R. Isaac Arama, Akeidat Yiẓḥak, Parashat Va-Yera, sha’ar 20, discussed infra, note 30. Cf. also, Teshuvot Ḥelkat Ya’akov, I, no. 142.
For discussion of a similar issue in the case of a penitent see Rambam, Teshuvot Pe’er ha-Dor, no. 132. See also Piskei Uzi’el, no. 61, who notes that Rambam sanctions only an infraction that is forbidden merely le-khatḥilah, i.e., before the fact, but not an infraction that remains forbidden post factum even though the perpetrator would thereby be spared a more severe transgression. Moveover, it should be noted that Rambam himself maintains that hal’itehu la-rasha applies only when the resultant infraction is more severe than the infraction that is obviated. See infra, notes 53-54 and accompanying text.
The principle hal’itehu la-rasha is similarly cited by Levush, Yoreh De’ah 334:1; Teshuvot Ḥatam Sofer, Ḥoshen Mishpat, no. 177; and Teshuvot Ḥelkat Ya’akov, I, no. 142, in justification of the ruling of Rema, Yoreh De’ah 334:3, providing for excommunication of a transgressor even in situations in which there is reason to fear that imposition of that sanction will not only fail as chastisement but will lead the transgressor to abandon Judaism entirely. Cf., however, Taz, Yoreh De’ah 334:1.
For sources ruling that conversion for purposes of marriage may not be performed in order to avert threatened apostasy see R. Ezriel Hildesheimer, Teshuvot Rabbi Ezri’el, Yoreh De’ah, no. 234 and Iggerot Mosheh, Even ha-Ezer, II, no. 4. See, however, R. David Zevi Hoffman, Teshuvot Melamed le-Ho’il, Yoreh De’ah, no. 83, who permitted improper conversion of a man for purposes of marriage in order to prevent more serious infractions on the part of his Jewish paramour. Cf., R. Shlomoh Kluger, Tuv Ta’am va-Da’at, I, no. 130, who, under such circumstances, permitted a man to marry a proselyte with whom he had consorted prior to her conversion. See also R. Eliyahu Chazan, Ta’alumot Lev, III, no. 31, followed by Piskei Uzi’el, no. 60, who sanction the marriage of a female convert within the statutory three-month waiting period in order to avoid more serious infraction.
See also ibid., no. 61, secs. 6-7 and no. 63, sec.1, which record Rabbi Uziel’s ruling permitting conversion for the sake of marriage for the same reason. That position was earlier formulated in his Mishpetei Uzi’el, I, Yoreh De’ah, no.14; II, Yoreh De’ah, nos. 53 and 58; and Even ha-Ezer, II, no. 25. Rabbi Uziel invokes Pe’er ha-Dor, no. 132, in declaring that parties to such marriages are “penitents” for whom restrictions that are imposed only le-khatḥilah, i.e., before the fact, may be suspended. However, since a kohen who marries a convert must, post factum, divorce her, Rabbi Uziel is not prepared to sanction conversion for the purpose of marrying a kohen. There is, however, an apparent inconsistency between that ruling and his earlier-cited ruling permitting conversion of a woman consorting with a Jewish man in circumstances in which it is clear that the parties will not abstain from sexual relations for the mandated ninety-day period. That prohibition applies even post factum in the sense that it is ongoing and remains in force even if a valid marriage has been contracted.
[Parenthetically, Rabbi Uziel’s citation of Pe’er ha-Dor as precedent is not apropos. Rambam addresses situations in which, ante factum, contracting a marriage is forbidden but once the marriage has been contracted the relationship is not disturbed. Sanctioning of the ongoing relationship is evidence of the diminished severity of the infraction. Rabbi Uziel assumes as a matter of course that a bet din that accepts the candidacy of a convert motivated by prospects of marriage incurs an infraction. That is also the position of many other authorities. See, for example, R. David Zevi Hoffman, Melamed le-Ho’il, Yoreh Deah, no. 83. Cf., however, Iggerot Mosheh, Even ha-Ezer, II, no. 4. Nevertheless, a conversion carried out under such circumstances is valid. However, the validity of such a conversion is entirely unrelated to the infraction committed by the bet din. It is the act of conversion per se that is interdicted either by formal prohibition or procedural rule. Validity of the conversion has no bearing upon the prohibited nature of the bet din’s act of conversion; the bet din is prohibited from performing a perfectly valid conversion. The distinction between ante factum and post factum is irrelevant to the act performed by the bet din and hence there is no basis for regarding that infraction as one of diminished severity.] Radvaz adds a tentative comment (karov ani lomar) to the effect that even in the absence of suspected adultery no attempt should be made to regularize the union "to satisfy the wicked" since, even if there was no prior adultery, the parties transgressed by entering into a civil marriage.²⁹Although his statement is somewhat ambiguous, Radvaz states explicitly that the partners to a civil union are “wicked” even if they have not consorted. In this case Radvaz may have considered them “wicked,” not because of entry into a civil marriage per se, but for having done so while the woman was still married to another man. However, in another responsum, VII, no. 11, Radvaz seems to deem the groom to be “wicked,” and hence unworthy of assistance in rendering the bride permissible to him, even if he is not suspected of having had a liaison with her.