(a) why do we beat him until "tetze nafsho"? does that mean he dies? but that can't be right, because he certainly won't fulfill the mitzvah if he's no longer alive!
(b) do we still do this today? i have heard of get busters in meah shaarim for example. what about if a guy refuses to put on tefillin? do the rabbis appoint people to beat him?
(c) my friend asked also: it could be that the man refuses so many times that they smack him more than 39 times. but then in a sense, it appears that failure to fulfill the mitzvas aseh incurs a worse penalty than the onesh of lamed-tess malkos for being over a lav! how can an aseh be more chamur than a lav?
thanks! G-d should bless you very much in your efforts.
jesse, haifa
(a) Regarding whether we hit a person until he actually dies: My Rebbi, Rav Gustman z'l, used to say that the Ketzos and Nesivos (CM 3:1) argue whether the Gemara means Ad v'Ad bi'Chlal (i.e. we kill him) or Ad v'Lo Ad bi'Chlal (i.e. we hit him until he is about to die, but we do not kill him).
As for your second points - it is true that he will not fulfill the Mitzvah if he is dead, but neither will he transgress it! Bear in mind that if a Mitzvas Aseh is transgressed it incurs a punishment. Mitzvos Aseh are not "optional."
(b) I will let Rabbi Sigler get back to you on this be'h.
(c) Tosfos (Nazir 20b DH Rebbi) uses your argument to suggest that Makin Oso applies only before the person has transgressed the Mitzvah in an irreversible manner. For example, if a person said that he will not keep a Mitzvas Aseh, but he can still change his mind. However, if the person has already transgressed the Mitzvah (for example, he performed a prohibited act), he will only be smitten 40 lashes. This opinion is echoed by the Chidushei ha'Ran (Chulin 132b), who explains that "Mitzvos Aseh," in this context, means a Mitzvah that has yet to be performed - be it an Aseh or Lo Sa'aseh, and by the Ran on the RIF in Kesuvos (16b of the Dapei ha'Rif), and the Ramban on our Sugya etc. This seems to be the consensus of the Rishonim.
It should be pointed out that there is a Girsa in the Rambam (Hilchos Chametz u'Matzah 6:12) that seems to disagree with this contention, maintaining that a person is smitten to death even if he has already transgressed a Mitzvah. See the commentaries there who discuss this at length.
Best wishes,
Mordecai Kornfeld
do we still do this today? i have heard of get busters in meah shaarim for example. what about if a guy refuses to put on tefillin? do the rabbis appoint people to beat him?
thanks! G-d should bless you very much in your efforts.
jesse, haifa
I have also heard of "get busters" but have been unable to track down any reliable information. Obviously, if it is practiced it has to be kept very hush hush because it would be strictly illegal to use physical force to extract a Get from a man. I haven't heard of any "Mitzvah busters" who go around enforcing Tefillin observance etc. That seems to be left up to parents to do. Theoretically, though, a Beis Din today could do that sort of thing except for the legality issue (see above). In fact, according to the Nesivos Mishpat (Choshen Mishpat 3) you don't even need a Beis Din to enforce Mitvah observance. Just as each individual is entitled to stop his fellow Jew from violating a prohibition (e.g. eating pork), he is also entitled to use physical force to get him to comply with Mitzvah observance. The Ketzos haChoshen, however, argues with the Nesivos (Ketzos and Meshovev Nesivos, ibid.) and says that whereas Afrushei m'Isura (stopping a transgression) can be done by an individual, forcing them to do a Mitzvah requires a Beis Din. (Even according to the Nesivos, a Beis Din is necessary to extract a Get by force (see Gittin 88b)).
Kol Tuv,
Yonasan Sigler
This is not a Psak Halachah