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we find that lashes are only administered after estimating that the
recipient will survive receiving them.

ɳ Response to Question One

In regard to the first case however, it is not clear what the halachah
will be when it does not seem to the physician that under normal
circumstances the criminal’s condition is going to improve. Should he
be handed over to the police despite the risk [to his life]? It is possible
that it is permitted to hand over a habitual robber to the authorities
even if there is a risk of his dying in the course of his interrogation
– this would be to prevent the world becoming desolate through the
proliferation of murderers and their accomplices.

Moreover, we find in maseches Bava Metzia (83b) that Rabbi Elazar
ben Rabbi Shimon would hand over Jewish robbers to the ruler and
the authorities would sentence them to death. Rabbi Yehoshua ben
Korcha said to him, “Vinegar the son of wine [i.e. unworthy son of a
worthy father], until when will you give over the people of our God
to be put to death?” Rabbi Elazar responded,“I am purging the vine-
yard of thorns.” He (Rabbi Yehoshua ben Korcha) responded, “Let
the Owner of the vineyard (Hakadosh baruch Hu) come and destroy
the thorns!” Eliyahu Hanavi too, complained to Rabbi Yishmael ben
Rabbi Yosi, about his handing over robbers to the ruler to be put to
death. It is clear from the Beis Yosef (Choshen Mishpat 388, 8 in the
new edition, quoting the Rashba) that Eliyahu Hanavi’s complaints
were directed only at Rabbi Yishmael ben Rabbi Yossi and Rabbi
Elazar ben Rabbi Shimon who, in view of their great piety, should
have refrained from having people killed for transgressions for which
the Torah does not impose the death penalty, but these leading Torah
sages did not err in the halachah, for it was permitted for them to
hand over the robbers to the ruler because a king upholds law and
order with such measures.

Thus writes the Rashba:“We were asked by our master the king…
to advise him and we told him that he can put the robber to death,
for these matters were only said [i.e. that cases involving the death

284 1 Medical-Halachic Responsa of Rav Zilberstein