In previous dappim, we learned that except in unusual circumstances, "אין שליח לדבר עבירה" (there is no agency when it comes to sin). That is to say, the one who carries out the act is fully liable since, as the Gemara says, "Whom does one obey, the master or the student?" In other words, God's law takes precedence, and there can never be an assignment of agency that contradicts God's command.

Our Gemara on Amud Aleph discusses a fascinating dispute between Shammai the Elder and the Rabbis. Should a man direct another person to commit murder on his behalf, the Sages hold that the agent, i.e., "the hitman," incurs liability, and not the sender. However, Shammai the Elder holds that the one who gave the kill order is obligated. After some discussion, one opinion of the Gemara concludes that Shammai the Elder is not referring to liability in earthly court, but rather in the Heavenly Court. Even the Sages do not dispute that there is some liability for being an instigator, but it is not the liability of heavenly punishment for inflicting death but rather for a lesser (but, of course, still a serious sin). After all, there has to be something sinful about encouraging or soliciting sinful behavior. The only point of dispute is whether the liability is as if the sin was committed, albeit punishment is carried out by the Heavenly Court and not the Earthly Court, or if he is not held liable as if he committed the actual sin, but some other infraction for soliciting sin.

One of the proofs that Shammai the Elder brings is from Chaggai the Prophet's rebuke of King David, accusing him of having murdered Uriah by the sword of Amon (Shmuel II:12:9), when he didn't actually do it himself.

On some level, though, both Shammai the Elder and the Sages agree that the sender has a degree of liability in the Heavenly Court and judgment. Similarly, there is a matter of discussion in Shulkhan Arukh (CM 32:2) regarding the liability of one who solicits false witnesses to extract payment:

"One who hires false witnesses in order to transfer a maneh from Reuven to Shimon is exempt under human law but liable under heavenly law.

Based on the opinion of Tosafos, Rama makes a distinction between hiring false witnesses and encouraging and egging them on. In the former case, he is liable for heavenly punishment as if he committed the sin himself, while in the latter, he is not. The Shach (ibid) brings a proof to this distinction of liabilities between hiring versus mere verbal goading from the Gemara (Sanhedrin 29a), which notes that the Primordial Snake could have argued his innocence because, after all, he did not eat from the Tree of Knowledge, and Adam and Chavah did not have to do his bidding because there is no appointment of an agent in regard to sin:

Rabbi Shmuel bar Naḥman says that Rabbi Yonatan says: From where is it derived that the judges do not advance a claim on behalf of a Mesis (an inciter of others to sin)? It is derived from the incident of the Primordial Snake who tempted Eve; he was the first inciter. As Rabbi Simlai says: The Snake could have advanced many claims on its own behalf, but it did not claim them. And for what reason did the Holy One, Blessed be He, not advance these claims for it, deeming the snake exempt from punishment? Because the snake did not advance these claims itself.

The Gemara asks: What could he have said? The Gemara answers: The Snake could have said that he is not to blame, as when there is a contradiction between the statement of the teacher and the statement of the student, whose statement should one listen to? One should listen to the statement of the teacher! Since God instructed Adam and Eve not to eat from the fruit of the Tree of Knowledge, Adam and Eve should have heeded God's words and not those of the snake.

The Shach asks, how could the Snake have maintained his innocence? Did we not learn there is still liability in the Heavenly Court for the one who sends the agent to sin? Shach says, it must be that Rama and Tosafos are correct, and mere verbal goading does not incur even heavenly liability for the actual sin.

Arvei Nachal (Shabbos Hagodol 2) offers a different answer to the Shach's question with fascinating theological implications, and also constructs a series of legal arguments to explain how King David was forgiven for his sin with Bat Sheva and for the death of Uriah. Arvei Nachal asserts that though one is liable in the Heavenly Court, that is literally the Heavenly Court, but God Himself can be merciful and follow Earthly Court rules. Thus, the Snake might have indeed argued his innocence before God, but NOT before the Heavenly Court, which held him liable. This is why Midrash (Lekach Tov 3:14 and 22) notes that Hashem's name is mentioned 71 times from the beginning of the Torah until this verse (3:14), indicating the 71 judges of Sanhedrin. Thus God convened a Heavenly Court specifically to hold the Snake liable.

Even more surprisingly, Arvei Nachal asserts that God Himself is free to do either: Judge as a Heavenly Court or as an Earthly Court, which worked uniquely and paradoxically in King David's favor. King David was accountable for two misdeeds regarding Bat Sheva: 1. She was a married woman 2. He caused Uriah's death by sending him to the front. Regarding the first sin, since it was decreed in heaven that Bat Sheva and King David were destined to marry, technically speaking in some cosmic sense, it was no sin. Yet, if King David wanted to rely on Heavenly judgment, though this might exempt him from the sin with Bat Sheva, it would incur even more liability for causing Uriah's death, as we saw in our Gemara. But since God can follow either Heavenly or Earthly Justice, God was able to forgive King David with contradictory justifications.

This is what is meant by the verse in Psalms (17:2):

"My judgment will come from You; Your eyes will behold correct ways."

The plural form, "correct ways," alludes to the point that King David was asking God to vindicate him based on two different contradictory approaches, Heavenly liability and Earthly liability.

The upshot from this extensive derash and pilpul is that while it is true that we are even more liable for our sins in the Heavenly Court compared to the Earthly Court, God's mercy has no bounds. Thus, we can pray and ask for divine forgiveness no matter how poor our legal merits. Like a good father, God will look to grant mercy beyond the legalities.

Translations Courtesy of Sefaria, except when, sometimes, I disagree with the translation

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