Sanhedrin 116

2:
We now turn to the third mode of execution: decapitation. The technical details of this mode were presented in Chapter Seven, Mishnah Three [Sanhedrin 090]:

1. The Torah makes a general contextual association of death by the sword or cleaver with the concept of vengeance or punishment: “I shall bring upon you the sword of retribution, avenging [the breaking of] My covenant [Leviticus 26:25].
2. In the case of a non-Jewish slave who is so maltreated by his Jewish owner that he dies “at his hand”, the Torah states specifically that the life of that slave “must be avenged” [Exodus 21:22]. The occurrence of the term “vengeance” in connection with punishment suggests that in Leviticus it is expressly stated that vengeance is exacted “by the sword”; in Exodus, where vengeance is also required, no means of exacting that vengeance is specified. The logical connection is made that the mode of exacting vengeance implied in Exodus is the same as that stated expressly in Leviticus.
3. In the case of a Jewish free person who is killed by another, the Torah states that the assailant “must die” [Exodus 21:12]. However, the nature of that death is not specified. It is but logical that one who kills a free Jew should be treated as one who kills his non-Jewish slave. Therefore, by implication, the Torah mandates decapitation by the sword or cleaver in certain cases of homicide. (Most of this line of reasoning is expounded by the Gemara [Sanhedrin 52b].)

3:
The case of the township all of whose inhabitants adopted idolatrous practices will be part of the subject of the next chapter. The rest of this present chapter is concerned with the judicial treatment of those who encompass another’s death. Our present mishnah seeks to define the difference between direct and indirect homicide.

4:
The Torah itself in several places describes homicidal acts. For example:

5:
Our present mishnah teaches that the items listed by the Torah are only examples and should not be viewed as exhaustive. Our mishnah gives more examples of the same principle: holding someone under water until they expire, or forcing someone into a fire until they are burned to death. (The Gemara [Sanhedrin 76b] points out that what creates the act of homicide is the fact that the assailant prevents his victim from escaping, even though the victim might have entered into the situation – water or fire and so forth – voluntarily.) What is common to all of these is that the death of the victim is brought about directly and inevitably by the act of the assailant, and act from which the victim has no means of escape. This must serve as a definition of homicide for which the death penalty is mandated.

6:
Our mishnah now introduces a second category. Let us say that the assailant forces his victim into water or fire and then leaves him to his own devices. If the victim could have extricated himself from the situation this cannot be classed as homicide for which the death penalty is mandated, since the assailant could be justified in assuming that his victim would extricate himself. Therefore, even if the victim dies as a result of the assailant’s attack no human court can condemn him to death. (This does not mean that the assailant gets off scot free. We shall return to this matter in Mishnah 5.)

7:
The Gemara [Sanhedrin 77a] introduces further refinements. The action of the assailant must be the immediate cause of the victim’s death. Therefore, says the great Babylonian Amora, Rava, if the assailant starves someone to death he cannot be condemned to death, since he was not the immediate cause of the victim’s death. On the other hand, if the assailant scorches someone to death in the sun or freezes them to death in the cold his action will inevitably bring about the victim’s ultimate death. On the other hand, if he just leaves his victim in a place where it might get scorching hot or it might get freezing cold, he cannot be condemned to death for this act. (Now, what would be the case in those old movies in which the hapless woman is left bound to the tracks…?)

In your version of Mishnah 1, Chapter 9, tractate Sanhedrin, you speak about stepdaughters. The Hebrew version I use mentions bat ishto uvat bitah uvat benah, which are particular cases of stepdaughters [his wife’s daughter – SR], not just any adopted child. Would an adopted child, with no blood relation with any of the parents be granted the same protection as here? How does Judaism treat adoption? Is it an accepted procedure according to Halacha?

I respond:

Halakhah does not recognize the possibility of the dissolution of blood ties with a biological parent, nor does it recognize the possibility of creating a blood tie with an adopting parent. For instance, if Jewish parents adopt a non-Jewish child the child does not become automatically Jewish, but requires formal conversion. An adopted male would be eligible to marry the natural daughter of the adopting parents. The closest that Halakhah comes to adoption in the western sense of the term (which derives from Roman custom) is in the appointment of an Apotropos, a legal guardian. The courts could appoint trustworthy people to administer the estate of orphans and to care for their needs.

Perhaps it would be best to say that Judaism recognizes all cases of adoption as foster-parenting. Taking someone else’s child into you own home and treating them as your own child is considered a most praiseworthy act. And in a strictly metaphorical (non-legal) sense the Gemara [Sanhedrin 19b] states that anyone who brings up an orphan in his household is considered as if he were the father of the child (just as the biblical Naomi is considered as the “mother” of the son of Ruth and Boaz [see Ruth 4:16-17]).

There is no reason why an adopted child should not observe mourning rites for a deceased foster-parent. However, it would be misleading if the adopted child were presented as if he or she were the natural child of the adopting parent (which being called to the Torah in synagogue, for example) since this could lead the general public to think that there is a blood relationship.

I would like to apologize for the long delay since the last Shiur. This was caused by a series of woes to which my computer was subjected all of which were interwoven and inextricable. I am confident that circumstances have now been created that will not only permit a resumption of regular Shiurim, but that will also permit them to be posted more often. Thank you for your patience.

Ĥanukah Samé'aĥ to everybody – happy Ĥanukah.