Rambam Mishneh Torah, Hilchos Mamrim, Chapter 3: The law of a Heretic and Zakein Marei

Chapter 3: The law of a Heretic and Zakein Marei

Halacha 1: A person who denies the old tradition

  • A person who denies the oral tradition is considered a heretic and is liable for death by all people.
  • Such an individual is not considered a rebellious Sage known as a Zakein Mamrei which will be explained later on,.

Halacha 2: The law of a heretic

  • Liable for death: Once the matter is made public that an individual is a denier of the oral tradition, he becomes liable for death, and may not be saved from danger and is to be put into danger, just as is the law regarding any other heretic.
  • Warning, witnesses, and judges: They may be put to death without warning and without witnesses and without any judges.
  • A Mitzvah: Whoever kills such an individual has done a great mitzvah by removing a stumbling block from the Jewish people.
  • Other heretics: This same law applies regarding one who denies that the Torah comes from heaven, or informs on other Jews to the Gentile authorities, or converts to another religion.
  • Not considered part of Israel: All the above heretics are not considered part of the Jewish people.

Halacha 3: The descendents of heretics-The law of a Tinok Shenishba & the Kiruv movement

  • Independent thinkers who came heretics: The above status of a heretic and his liability for death, only applies to an individual who on his own accord came to his conclusion of denial of the oral tradition, as was done by Tzadok and Beisus.
  • Their followers: Likewise, the followers of these individuals are likewise defined as heretics.
  • Their descendents-Tinok Shnishba: However, the descendents of these heretics and their followers, which includes her children and grandchildren which were brought up with the heresy of their parents are not considered heretics and are rather viewed like children who have been kidnapped and raised by then.
  • Their level of responsibility: The descendents are not to be to blame for the fact that they do not fulfill Torah and Mitzvos being that they are considered to be compelled to transgress.
  • If they now discover that they are Jewish and are exposed to Torah: The descendents of heretics are not held responsible for their sinful behavior even if they later discover that they are Jewish, and are exposed to the Jewish religion. Nonetheless, if they continue transgressing they are still considered to be doing so under duress, being that they are simply continuing to follow their mistaken heritage and upbringing.
  • The Karaits: Based on the above, it is understood that although the original Karaits who first started the heresy and their followers were considered complete heretics with the full force of the law applicable to then, nonetheless, their descendents today who follow in their footsteps are considered like a Tinok Shenishba and are not held responsible for their sinful behavior.
  • The Kiruv movement-Drawing them back to Judaism: Being that these descendents of heretics are not considered true heretics and are not responsible for their actions, therefore it is proper for people to influence them to repent in a peaceful manner, until they finally return to a Torah life.

Halacha 4: What is a Zakein Mamrei

  • A great Torah Sage: A Zakein Mamrei is an individual who is a great Torah Sage and carries the tradition from Sinai, and judges and passes laws like any other of the sages of Israel, but rebels against the rulings of the Supreme Court.
  • The act of rebellion: He is considered a rebel if he disputes a ruling of the Supreme Court, and tells people to follow his ruling and not the ruling of Supreme Court.
  • Capital punishment: The above Sage who has rebelled is liable for death.
  • Has portion in world to come: Prior to his execution, the sage is to confess his sins and he then merits a portion of the world to come.
  • Why is he put to death? Although he is also a Sage and has received tradition from Sinai, and is on par with the Supreme Court judges, nonetheless, the Torah gave the Supreme Court the final say.
  • If the Supreme Court issues clemency: The Supreme Court does not have the power to issue a clemency to the above Sage and save him from death, as the Torah does not want there to be an increase of disputes amongst Israel.

Halacha 5: The offense of rebellion liable of death

  • A Zakein Mamrei is only liable for death if all the following criteria are fulfilled:
    • Ordination: He has been ordained by the Supreme Court to serve as a judge. If, however, he is a mere student of Torah who has not yet reached ordination, then his dissent is meaningless.
    • A Sin of Kareis/Chatas/Tefillin: He voices dissent against their ruling regarding a matter that carries with it the penalty of Kareis and Chatas, or regarding a matter the relates to Tefillin.
    • His instructions: He instructs people to follow his ruling and not the ruling of the Supreme Court. Or alternatively, he himself follows his ruling and not the ruling of the Supreme Court.
    • The location: The above opinion of dissent is only liable for death if it takes place in front of the Supreme Court while they are in session in the temple area.

Halacha 6: If he dissents without instructing people to follow him

  • If the ordained Sage taught individuals like his opinion in contrast to the opinion of Supreme Court but never told anyone to actually practice his opinion as opposed to the opinion Supreme Court, then he is not liable for death, as the penalty is only given when he acts upon it or instructs others to act upon it and not simply by teaching his opposing views.

Halacha 7: If the Supreme Court issued the ruling not in their location

  • If the Supreme Court was not in their permanent location at the time that they gave the ruling in front of the sage, but rather gave it when he found them elsewhere, then he is not liable for death.
  • What to do with such a rebel: A rebellious Sage who is not liable for death due to one of the above exceptions, is nonetheless liable for punishment by the Supreme Court as they see fit. They have the power to excommunicate him, to give him a beating, and to prohibit him from teaching the public.

Halacha 8: The order of judgment and capital punishment for the Zakein Mamrei

  • The following is the order of transgression, judgment, and execution for the Zakein Mamrei:
    • The local dispute and ruling of lower courts: A question in law is raised in a local town, and an ordained Sage rules one way based on his logic or tradition, while the others dispute his ruling. They then altogether appeared before the Higher court in Jerusalem which sits by the Temple Mount.
    • The court hears the sides of the argument and issues a verdict over the case. If the sage accepts their verdict, then everything is fine. If, however, he continues to argue on their verdict, then they all appear before the higher Court in the courtyard of the temple.
    • The higher court hears the sides of the argument and issues a verdict over the case. If the sage accepts their verdict, then everything is fine. If, however, he continues to argue on their verdict, then they all appear before the supreme Court in the temple.
    • The Supreme Court verdict: The supreme court hears the sides of the argument and issues a verdict over the case. Everyone then returns to their cities of origin.
    • The rebelliousness of the sage: If the sage returns home and continues to argue on their verdict while at home, that if he avoids giving actual instruction to follow his opinion, then he is exempt from death. If, however, he instructs people to do like his opinion, or he himself does like his opinion, then he is liable for death without being prewarned.
    • This applies, even if he gives a reason behind his dissent.
    • His execution: He is judged to be put to death before the local court in his city.
    • He is then incarcerated and brought to Jerusalem to be executed by the Supreme Court in Jerusalem. He may not be executed outside of Jerusalem even if the Supreme Court is there.
    • He is held in incarceration until the following holiday.
    • He is executed through strangulation on the holiday.
    • His execution is to be announced to all the people.
  • Announcing those guilty of capital punishment: There are four individuals who need to be announced to the public, and these are the Zakein Mamrei, Eidim Zomimim, Meisis, and a Ben Sorer Umoreh.

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