Regarding an individual who seeks to convince other Jews to serve a foreign god, we find two unusual practices. Firstly, in order to convict such an individual in court, no warning is necessary.1 Generally, in Jewish law an individual must receive a verbal warning before committing the sin to be liable in court. In the case of a proselytizer, however, no warning is necessary. As long as two kosher witnesses observe the inciting, the sinner may be taken to court to be convicted.2

The second unusual practice is that there is a mitzvah to actively seek to bring this individual to justice. If the inciter is unwilling to talk in front of two kosher witnesses—since he is aware that in order to be convicted, two kosher witnesses must be present—it is meritorious to set up a trap so that he may be convicted. Maimonides describes how this works:

How is the trap set for him? The musat (individual proselytized to) should bring two people and place them in a dark place where they can see the mesit (inciter) and hear what he is saying without his seeing them. He tells the mesit: "Repeat what you told me privately."

[When] he does so, the musat should reply: "How can we forsake our G‑d in heaven and serve wood and stone?" If [the mesit] retracts or remains silent, he is not held liable. If he tells him, "This is our obligation and this is beneficial to us," those who stand far off have him summoned to court and stoned.3

The question here is, why is this back-and-forth necessary? Why must the individual seek a retraction from the inciter, after the inciter repeated his speech, by asking “How can we forsake our G‑d . . . ?” Didn't we establish—and in fact Maimonides sets this out immediately prior to this section—that a proselytizer does not need any warning? This protest seems to be a way to caution and forewarn the inciter. Why is it necessary here?

Additionally, why is the inciter not liable if he retracts at this stage? Surely it is too late, as he has already proselytized before two witnesses?

The truth is that this section of Maimonides is almost a direct quote from a mishnah in chapter seven of Tractate Sanhedrin, so this question is not simply on Maimonides, but on the mishnah itself. If a proselytizer does not need a warning, then why in the case of entrapment is a warning (in the form of the protest, “How can we forsake G‑d?”) seemingly necessary?

Some Kind of Forewarning is Necessary

Various commentators allude to this question, including Rabbi Yom Tov Lipmann Heller (1579–1654, known after the name of his commentary on the Mishnah, Tosafot Yom Tov),who suggests that a case of entrapment is different from a regular case. Here, since this individual is being set up, we are a little more lenient on the potential inciter and therefore allow him a chance to retract by requiring that he be given some kind of a warning.4

Tosafot in Tractate Sanhedrin comes to a similar conclusion, but he takes this a step further. The Talmud had quoted a baraita, which states that a proselytizer does not need a warning. The baraita reads:

With regard to all the others, those who are liable for the various death penalties stated in the Torah other than the inciter to idol worship, the court executes them only when the following elements are present: The congregation, represented by the court; and witnesses; and forewarning just before the defendant commits the transgression.5

So all cases need the three elements of congregation,6 witnesses and forewarning to be present for a conviction to be upheld in court—aside from our case of an inciter. The inciter does not need a warning.7

Tosafot—perhaps bothered by our question above, namely that the mishnah in chapter seven of Tractate Sanhedrin implies that at least in a case of entrapment some warning is necessary—comments that in truth, even in the case of a proselytizer, some kind of a warning is necessary. Generally speaking, a warning must be extremely clear, to the extent that the potential sinner must be aware of what punishment he would be liable for if he commited the sin. Here, Tosafot writes that it is enough just to say: “How can we forsake our G‑d in heaven . . . ?”

This answers the question of why the warning of “How can we forsake G‑d, etc.” is necessary in the case of an entrapment. Tosafot, however, does not limit this to a case of entrapment. According to Tosafot, anyone who attempts to incite other Jews to serve idols would need this kind of warning in order to be convicted in court.

However, this is not the simple reading of the mishnah from Sanhedrin (quoted by Maimonides), which only records the need for this forewarning regarding a case of entrapment. And it is also not the simple reading of the baraita quoted above, which seems to state that a forewarning is not necessary.

Now, neither of these two suggested resolutions would be sufficient for us to resolve the difficulty with Maimonides. This is because he clearly states that a forewarning is not necessary in the case of an inciter, contrary to Tosafot. And he doesn’t seem to make the differentiation made by the Tosafot Yom Tov—that only in a case of entrapment would this warning be necessary—as he mentions what seems to be the general rule that “a mesit does not need a warning” directly before describing the particulars of how the entrapment would work. If, according to Maimonides, no warning is necessary across the board, then why in the case of entrapment is the back-and-forth of “How can we forsake our G‑d, etc.” required? And if, according to Maimonides, a warning is required in the case of entrapment, then surely such an obvious distinction would be noted.

A Resolution for Maimonides

The Yad Ramah, (Rabbi Meir Abulafia, 1170 – 1244) in his commentary to Sanhedrin, offers a beautifully elegant resolution to this problem, one that fits perfectly with the mishnah, baraita and Maimonides' text.

He draws a clear distinction between the case of an inciter who was “entrapped” versus an inciter who proselytized on his own. In the case where a trap is set up for the inciter, the musat (individual setting the trap) instigates the entire discussion by instructing the would-be proselytizer, “Tell me what you were telling me yesterday.” When he replies, and tells over his prior statement in support of idol worship, he is not actively proselytizing. He is merely answering a question.

When the Torah condemns an inciter to death, the Torah is referring to someone who incites of his own volition—not someone merely answering a question. If the would-be inciter would stop there, he would indeed not be liable, as he was simply repeating what he had said previously. True, he is admitting to previously having proselytized, but since there were no witness present, he can not be condemned for what happened in the past, even if he admits to it.

That is why the one setting the trap continues and asks him to double down on his message. Only if the inciter now attempts to convince the individual to serve idols can he be held liable. Only at this stage do we actually have a case of incitement that may be tried in court, since until this stage he was merely responding to an inquiry by repeating what he had said previously.8

Now we can understand why this back-and-forth is only necessary in a case of “entrapment.” If someone attempted to proselytize two individuals (who are kosher witnesses), there would be no need for any back-and-forth at all. This is a bona fide case of incitement, and the sinner may be tried without any warning or clarification. Only in the case of “entrapment,” where it was necessary for the inciter to be set up, do we need to get him to double down, as a reply to a query is not a valid form of incitement.

Never be Complacent

The Lubavitcher Rebbe, in an edited talk discussing this law, takes note of a lesson from this discussion.

Deuteronomy 13:7 states as follows:

If your brother, the son of your mother, tempts you in secret, or your son, or your daughter, or the wife of your embrace, or your friend, who is as your own soul, saying, "Let us go and worship other gods, which neither you, nor your forefathers have known."

Rashi comments that “your brother” refers to a half-brother from one's father, “son of your mother” refers to a half-brother from one's mother, and “your friend, who is as your own soul” refers to one's father. So according to Rashi, the Torah lists the following relatives: One’s brothers (from the father or mother), children, wife or father.

The Rebbe asks, why is a person's mother or sister not mentioned in this verse? Seemingly, they too could lead a person astray.

He explains that the Torah uses examples that are common. The verse is referring to someone who has already established a family of his own, and the most likely scenario is that he would be persuaded by a brother, father, wife or children.

Generally, a married man is closest to his male siblings. Although he may be close to his sisters too, he would generally not be persuaded by them with regard to matters of faith, and definitely not so far as to serve other gods. Similarly, even his mother, whom he is indeed close to, would not hold sway over him in this way.

His father and brothers on the other hand, and indeed his wife and children too, would be more likely to have this kind of influence on him. His wife and children live together with him constantly, and therefore have a huge influence simply due to their proximity. And his father and brothers have an intellectual influence; he is likely to discuss matters relating to theology with them.

With regard to our service of G‑d, we may feel comfortable relying on our intellect and abilities. We may at times feel content that we have things worked out. We are confident in our faith and are satisfied with where we stand with regard to our observance of mitzvahs.

The lesson we learn from an inciter, says the Rebbe, is to never let down our guard. We should not be overconfident in our own abilities. Sometimes it is what is closest to us, our own intellect and abilities, that leads us astray. Just as the Torah alludes to close family members as having the most sway over us, the same is true with regard to our service of G‑d. What is closest to us, what makes us who we are, our intellect and our temperament, may hinder as well as aid our service of G‑d.

We can never be fully confident in our intellectual ability to overcome all challenges. The only sure path to success is by completely putting one’s egoistic self aside and devoting oneself to the service of the Creator. When one achieves this, then even one’s intellect becomes subservient to G‑d’s will.9

Much of this article is based on a class given by Rabbi Moshe Wolberg.