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Shabbat Parashat Miketz 5772

P'ninat Mishpat: Educational Violence? part II Violence Necessary for Educational Purposes

(condensed from Hemdat Mishpat, rulings of the Eretz Hemdah-Gazit Rabbinical Courts)

Case:   The defendant (=def), a teacher and respected member of a community, found two boys, including the plaintiff (=pl), in a heated argument. Pl threatened to hit the other boy, who told def that pl had already hit him. Def demanded that pl leave the area. After pl refused several times, def shoved him. Pl, who it turns out, had surgery on his inner ear a week earlier, sustained damage to his ear as a result of def’s rough contact and required substantial medical care. Pl and his parents demand payment for direct and indirect expenses and for pain.

 

[Last time we dealt with beit din’s authority to rule on matters of bodily damage. Now we continue with def’s claim that his actions were justified.]

 

Ruling:    Def claims that under the circumstances, that pl had hit another boy and continued to intimidate and threaten him, it was justified to stop the episode even with violence of his own. Sometimes, he claims, only aggressive action has impact on violent children. We will look for cases in which one who hits his counterpart is exempt from damages.

The Shulchan Aruch (Choshen Mishpat 431:13) rules that when one sees someone hitting a fellow Jew and the only way to save him is to hit the attacker, the bystander may do so to keep the attacker away from sin. In our case, though, def did not see pl hitting, but acted because of concern that it would happen in the future.

The mishna (Makkot 8a) says that an unintentional murderer is exiled to an ir miklat only if what he was doing was optional, but a father hitting his son, a teacher hitting his student, and a officer carrying out a court ruling are exempt. The gemara explains that in those cases, the hitting was done in the context of a mitzva. The Kiryat Chana (cited in Pitchei Teshuva, CM 424:4) says that the teacher’s exemption is only from exile, not from damage payment. The Shvut Yaakov (III, 140) argues, since an exemption based on the permissibility of the action under the circumstances should apply to payment as well.

However, even the Shvut Yaakov is not grounds to exempt def. A father has authority to [responsibly but] firmly discipline his son, and he gives over some of that authority to his son’s teacher. While def is an educator in his community, he is not pl’s teacher. Furthermore, nowadays the law dictates and society has accepted the approach that teachers must not use physical force to discipline. Therefore, def cannot justify his aggression on educational grounds.

Even if one were to accept the approach (for which testimony was brought in beit din) that physical discipline is needed at times, def was not authorized to do so. He is not an officer of the court or appointed by the community to enforce discipline. He also did not have a right to believe the word of one child against the other without real proof (see Igrot Moshe, Yoreh Deah II, 103). Violence of an adult against a child is particularly objectionable because of the imbalance in strength between the two. Therefore, def must pay damages.  

There is one final issue, with which we will deal next week.

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Dedication

This edition of
Hemdat Yamim

is dedicated
 to the memory of
R' Meir
 ben Yechezkel Shraga Brachfeld

o.b.m

 

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Hemdat Yamim
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