Sanhedrin 091

2:
There are discrepancies between the way the material is divided into mishnayot in the Talmud and the way it is presented in the Mishnah codices. Both methods have logic to commend them and lack of logic to suggest otherwise. I have chosen to ignore both methods and to present the mishnaic material according to what seems a convenient division.

3:
We begin our survey with eighteen crimes the punishment for which was stoning – as described in chapter six. However, my translation of our mishnah does not add up to eighteen since "copulation with an animal" is treated separately for male and female offenders, and "seduction to idolatry" is divided into seduction of an individual and general seduction of a whole township. The eighteen offences can be categorized as follows:

• five offences of effrontery to God's unique supremacy (blasphemy, idolatry, offering one's children to Molekh, desecration of the Sabbath, seduction to idolatry of the individual and seduction to idolatry of the whole population of a township);
• four sexual offences between men and women (copulation with one's mother, one's father's wife, one's daughter-in-law, and with an affianced woman);
• three sexual offences not involving copulation between men and women (a male with another male, a male with an animal and a woman with an animal);
• three offences connected with occultism (being a medium, being a necromancer and practicing occultism);
• two offences of effrontery to parents (cursing a parent and the case of the stubborn and rebellious son).

4:
However, very little weight should be placed on the above categorization since the punishment of stoning is derived ultimately not from some logical system but from textual exegesis of the Torah. In most of the above cases the Torah states explicitly that the punishment for offending against this or that mitzvah is stoning. In a few cases it is not stated explicitly, but is deemed to be implicit. The Torah states:

5:
The seven sexual offences mentioned in our mishnah all belong to a category of mitzvot given the general appellation of Arayot [forbidden sexual liaisons] – though the category of Arayot is wider than the offences itemized in our mishnah. In his commentary on our present mishnah Rambam [Moses Maimonides, North Africa 12th century CE] embarks upon a rather long excursus concerning the technical minutiae connected with these offences. His language is most explicit – indeed, the sages were never puritanically inhibited when dealing with such mitzvot. In general, let us say that all sexual offences (including Arayot not dealt with by our present mishnah) can be circumscribed by the following considerations – and I mention them only because of a certain notorious publicity that they have received of late. A sexual offence may be deemed to have taken place regardless of whether penetration was complete or partial, regardless of whether there was ejaculation or not, regardless of the position chosen, and regardless of the physical orifice involved.

6:
Of the seven sexual offences mentioned in our mishnah it seems to me that most would still be considered "unnatural" by all sections of our society: even the recognition of the Oedipus complex does not bring about a general approbation of copulation between a mother and her son or between a man and his son's wife and so forth. In my innocence I would also assume that more than ninety-nine people in every hundred would consider bestiality [copulation between a human being and another kind of animal] as being "inappropriate" to say the very least! However, other instances of Arayot nowadays do not meet with either universal condemnation or universal approbation. The interdiction of copulation between two unmarried adults of different sexes now seems to be "a custom more honoured in the breach than the observance", as Shakespeare's Hamlet observes in a different connection – though it is not an Ervah [singular of Arayot]. But copulation between two males is categorized as an Ervah but our modern society looks upon it with anything ranging from approval through indifference to condemnation. And this is true not only of the proverbial "man in the street" but of our rabbis too – of all persuasions. (I recently met with an orthodox rabbi who makes no secret of his being actively homosexual.)

I am following your Mishnah classes and it appears from them that the Judgment by a Beit Din was final. As in these days it has become a matter of discussion here in Israel the appeal to the Higher Court of justice, was there any provision in Talmudic times for a higher instance were to redress judicial errors? Was the judgment final? What would happen if someone would consider – ex post facto – that the sentence was unfair? What if new evidence would appear? Was it there any procedural difference between the different sizes of Beit-Din? Was it possible to bring a matter tried before a Beit-Din of 3 to a Beit Din of 23, to 71?

I respond:

As far as Dinei Mamonot are concerned, we have already dealt with this issue. Here is what I wrote in Sanhedrin 063:

As far as Dinei Nefashot are concerned the situation is more difficult. In Sanhedrin 079 we learned the following mishnah: