Ben Sorer U'Moreh

Sanhedrin (8:5) | Yehuda Gottlieb | 12 years ago

The Mishnah (Sanhedrin 8:5) states:

A ben sorer u’moreh (wayward and rebellious son) is judged based on his end – he should die innocent rather than dieing with guilt.

A ben sorer u’moreh is punished in the present in order to prevent him from becoming guilty in the future. How is it possible to punish someone based on what he will do in the future?

The Gemara (68b) also challenges this logic asking that if we judge him based on the future, a katan (minor), who is too young to be a ben sorer u’moreh, should also qualify. How could the Gemara even ask this question? We learn at the beginning of the perek that a katan (minor) is not held liable for his actions.

A similar difficulty is found by ir hanidachat21, as the Rambam writes (Hilchot Avodat Kochavim 4:6) that one must destroy all that live in the city, including women and children by the sword. Here too we see that even though a katan is not of the age to be held liable for punishment – he is in any event punished along with the rest of the city.

One may differentiate between the case of the ir hanidachat and a ben sorer u’moreh. The Rambam describes the act of going to kill the inhabitants of such a city as engaging in “milchama” (war) against the city. The difference may be, that when there are a majority of people committing the sin (as with Ir Hanidachat) a minor is able to be punished along with that majority. However, when that minor is an individual (ben sorer u’moreh) we should still be unable to give a punishment due to the concept of a minor not being liable for punishment!

Another difficulty arises in Parashat Korach. The pasuk (Bamidbar ) describes that even the wives, children and infants were all part of Korach’s eida. Rashi states:

Come and see how severe dispute is, for see now, an earthly court does not punish unless (the one found guilty) had reached maturity (13 years), and the heavenly court does not punish until 20 years, but here even infants were destroyed.

We see from here that there is indeed a concept of holding minors liable for a sin. Birchas Avraham explains that we are punishing the minors because of their end – due to the fact that we are worried that they will grow up to be ba’alei machloket – so just like ben sorer u’moreh, it is better that they are killed while they are innocent rather than growing up and becoming guilty. This still is problematic because at the time they sinned they were minors and should not be liable for their actions!

The Birchas Avraham therefore differentiates whether the din of the ben sorer u’moreh is a punishment for his sin, or whether we are saving the child from dying when he is found guilty (later on in life).22 This element of saving a person from sinning is also demonstrated in the concept that one may kill someone who is rodef to do an aveirah before he does it. This concept can be applied to ben sorer u’moreh as we already know he has done terrible and wicked acts23 and has a chazakah that he is a rasha – therefore we are in fact saving him from being found guilty (albeit at a later stage).

This novel idea is now able to answer how the Gemara could ask that a minor be held liable as a ben sorer u’moreh. If one was to view ben sorer u’moreh as a punishment then there would be a problem, because one can only be liable for punishment when one reaches gadlut. However, if we are able to view it as saving the minor from being guilty later on in life then it makes no difference whether the person is a gadol or not.

Additionally, this view of a ben sorer u’moreh’s death sentence also makes more sense in light of the wording of the Mishnah – “is judged based on his end”. If we see the judgment as a punishment for his actions then looking forward to this minor’s end is irrelevant. It is only if we see the death sentence as hatzalah, of saving the youth, that the Mishnah’s wording seems logical.24

21 A city overrun by idol worshippers (whose din is to be destroyed)

22 We find this concept in Sanhedrin (73a) where the Gemara states that we “save” people’s lives. Rashi states here that we are talking about saving these people from sin.

23 See the beginning of Sanhedrin perek 8.

24 In contrast, see Gemara Sanhedrin perek 8 , Rambam (Mamrim 7:5), Chinuch (248) which seem to indicate that the din of a ben sorer u’moreh is indeed a punishment.


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