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Why does capital punishment require hasra'ah (warning) even for a talmid chacham who already knows the law? The shiur explores whether hasra'ah establishes the person's subjective intent or creates objective testimony that the witnesses saw a ma'aseh b'meizid (deliberate act). This reframes the entire purpose of judicial punishment as eradicating evil acts from society rather than punishing the perpetrator's sin.
This shiur presents a deep analysis of the Rambam (רמב"ם)'s understanding of hasra'ah (warning before capital punishment) in Hilchos Issurei Biah and Hilchos Sanhedrin, addressing a fundamental question raised by the Rishonim. The Gemara (גמרא) in Sanhedrin discusses whether a talmid chacham (Torah (תורה) scholar) requires hasra'ah. Rabbi Yosi holds that a chaver (scholar) does not need hasra'ah because "shelo nitna hasra ela l'hafkim bein shogeig l'meizid" — hasra'ah was only given to distinguish between accidental and intentional violation — and since a scholar already knows the prohibition, no warning is needed. The Chachamim disagree and hold that even a talmid chacham needs hasra'ah. The difficulty with the Rambam is that he rules like the Chachamim that a talmid chacham requires hasra'ah, yet he uses the language of Rabbi Yosi — "shelo nitna hasra ela l'hafkim bein shogeig l'meizid" — to explain why. The Ramah and other Rishonim struggle with this apparent contradiction. The Rama Magid attempts to resolve this by distinguishing between two types of mistakes: mistakes of law (not knowing the act is forbidden) versus mistakes of fact (not knowing the factual circumstances, such as not knowing it's one's sister). According to this approach, the talmid chacham doesn't need warning about the law but does need clarification about the facts, while an am ha'aretz needs both.
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Bava Kamma 2a
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