Halakhah su Levitico 20:8

According to this analysis, hal'itehu la-rasha is not at all an independent principle of Halakhah justifying a course of action. Rather, it is a rationale explaining why legislation was not promulgated in a particular instance. Hal'itehu la-rasha explains only why transgressors were not shielded from further transgression; hal'itehu la-rasha⁵²There may well be entirely different grounds to justify the student’s course of action in the case of the poisoned sandwich. The Gemara, Ketubot 86a and Ḥullin 132b, declares that a person may be compelled to fulfill a commandment, e.g., the miẓvah of sukkah or of the four species, by means of physical force, if necessary, “until his life departs.” There is considerable controversy with regard to whether the recalcitrant person may be beaten only within an “inch of his life” since, if he dies, he certainly will not fulfill the commandment, or whether he may be beaten until he expires. Rambam, Sefer ha-Miẓvot, introduction, shoresh 14; idem, Commentary on the Mishnah, Ketubot 49a; Ramban, Commentary on the Pentateuch, Leviticus 20:8; Ḥiddushei ha-Ran, Bava Meẓi’a 61b and Ḥullin 132b; R. Meir Simchah ha-Kohen of Dvinsk, Or Sameaḥ, Hilkhot Mamrim 4:3, state that lethal force may be employed. However, Rabbenu Yonah, cited by Shitah Mekubbeẓet, Ketubot 86a, maintains that deadly force may not be applied in order to compel fulfillment of a miẓvah. See also R. Meir Eisenstadt, Teshuvot Amudei Esh, no. 1, klal 15. Amudei Esh endeavors to explain Rambam’s use of the term “until he dies” as a metaphor for weakness. Cf., Rambam, Guide for the Perplexed, Part I, chap. 12. Or Sameaḥ asserts that, “when it is certain to us” that duress will not accomplish the desired result, not even a hair on the head of the would-be transgressor may be disturbed.
Keẓot ha-Ḥoshen 3:1 rules that only a bet din comprised of ordained judges competent to impose capital punishment is authorized to use physical force to enforce specific performance with regard to fulfilling a commandment. The postion of Keẓot is reflected in the work of an early-day authority, R. Eliezer of Metz, Sefer Yere’im, I, no. 169, and Ramban, Exodus 20:8. Netivot ha-Mishpat 3:1 disagrees in maintaining that judicial authority is not required for this purpose but that every Jew is empowered and obligated to secure observance of commandments even, if necessary, by use of force. Or Sameaḥ, Hilkhot Mamrim 4:3, concurs in that position but maintains that, when duress is warranted in execution of a divorce, only a bet din can compel such action because execution of a divorce requires acquiescence. See also R. Chaim of Volozhin, responsum no. 2, s.v. uba-zeh, published as an appendix to R. Joseph Ber Soloveitchik, Teshuvot Bet ha-Levi, I. Cf., the distinctions made by Ḥatam Sofer, Ḥoshen Mishpat, no. 177, sec. 3 and Ḥiddushei ha-Rim, Ḥoshen Mishpat 1:28 as well as R. Shimon Shkop, Sha’arei Yosher, sha’ar 7, chap. 5.
In his response to Netivot ha-Mishpat, the author of Keẓot ha-Ḥoshen, Meshovev ha-Netivot 3:1, distinguishes between positive commandments and negative prohibitions: Enforcement of positive obligations, he maintains, requires judicial authority but a properly constituted bet din may apply coercive measures even to the point of death. However, prevention of transgression of a negative commandment, he asserts, is a private obligation and hence the force applied may not be lethal in nature. This is also the position of R. Joseph Babad, Minḥat Ḥinnukh, miẓvah 8, sec. 10, and miẓvah 55, sec. 20. See also R. Jonathan Eibeschutz, Urim ve-Tumim 4:1 and Teshuvot Maharya, II, no. 164 as well as Sedei Ḥemed, Asifat Dinim, ma’arekhet heh, no. 4. Cf., however, R. Chaim Palaggi, Ḥikkekei Lev, Oraḥ Ḥayyim, no. 19.
Teshuvot Radvaz, IV, no. 1,329, (258) seems to rule that physical force may be used only by a person having authority over the would-be transgressor, e.g., a father or a master. See the terminology employed by Rema, Ḥoshen Mishpat 421:13. However, R. Ya’akov Yesha’ya Blau, Pitḥei Ḥoshen, V, chap. 2, notes 19 and 20, understands Radvaz’ comments as being consistent with the position of Yam shel Shlomoh cited later in this note. See also Sedei Ḥemed, Asifat Dinim, ma’arekhet heh, no. 4. However, R. Naphtali Zevi Judah Berlin, Ha’amek She’elah, Parashat Va-Yeshev, She’ilta 27, sec. 6, asserts that physical force may not be used but that, post factum, at least in the case of a master vis-à-vis his slave, there is no liability. See also sources cited by Pitḥei Ḥoshen, V, chap. 2, notes 19 and 20.
Thus, virtually all authorities agree that physical force may be employed to prevent transgression of a negative commandment. Accordingly, physical force would be warranted in order to identify a thief and thereby prevent further acts of theft. In the case under discussion, although a lethal poison was administered, the student was entirely confident of the ability of the already prepared antidote to avert a fatal result. Administration of the poison coupled with its antidote certainly constituted physical force — but non-lethal force is warranted in order to prevent prospective infraction of the prohibition against theft.
Nevertheless, it is necessary to be mindful of the comment of R. Shlomoh Luria, Yam shel Shlomoh, Bava Kamma 3:9, to the effect that, although technically correct, physical force of any kind should not be employed other than by designated authorities. The danger of, and possible abuses arising from, private parties taking the law into their own hands are readily apparent. is not an invitation to entice malfeasors to further transgression and certainly not a license to cause them physical harm.⁵³For a discussion of why theft is deemed a more grievous transgression than orlah and kerem reva’i see Teshuvot Be’er Mosheh, V, no. 162, sec. 9 and cf., Be-Ẓel ha-Ḥokhmah, I, no. 27. Teshuvot Shevet ha-Levi, II, no. 1, cites R. Meir Arak, Minḥat Pittim, Yoreh De’ah, no. 1, who explains that theft is a more serious transgression because it is a sin against both God and man whereas orlah and kerem reva’i are only sins against God.
See Teshuvot Emek Halakhah, II, no. 4, who seeks to demonstrate that Rambam’s limitation of the principle is compelled by an analysis of the situation with regard to orlah and to kerem reva’i presented by the Mishnah. Emek Halakhah argues that, if hali’tehu la-rasha is a rule of general application there is no reason to caution against orlah and kerem reva’i even during the sabbatical year. Fruit whose status is doubtful, i.e., the fruit may possibly be prohibited, is also forbidden and hence, if the principle hal’itehu la-rasha were to apply, there would be no need to mark such fruit. Accordingly, reasons Emek Halakhah, Rambam must have deduced that hal’itehu la-rasha applies only during the years in which the produce is not ownerless and is occasioned by the more serious transgression of theft. Of course, that argument fails if, as postulated by Tuv Ta’am va-Da’at, hal’itehu la-rasha does not apply in situations in which all transgression can be prevented; accordingly, it is in the seventh year, during which the only possible infraction is orlah or kerem reva’i, that notice in the form of marking the fruit as orlah or kerem reva’i is required.