Sanhedrin 119

נושא: Sanhedrin

Sanhedrin 119

BET MIDRASH VIRTUALI

רוֹצֵחַ שֶׁנִּתְעָרֵב בַּאֲחֵרִים, כֻּלָּן פְּטוּרִין. רַבִּי יְהוּדָה אוֹמֵר: כּוֹנְסִין אוֹתָן לַכִּפָּה. כָּל חַיָּבֵי מִיתוֹת שֶׁנִּתְעָרְבוּ זֶה בָזֶה, נִדּוֹנִין בַּקַּלָּה. הַנִּסְקָלִין בַנִּשְׂרָפִין, רַבִּי שִׁמְעוֹן אוֹמֵר: נִדּוֹנִין בִּסְקִילָה, שֶׁהַשְּרֵפָה חֲמוּרָה. וַחֲכָמִים אוֹמְרִים: נִדּוֹנִין בִּשְׂרֵפָה, שֶׁהַסְּקִילָה חֲמוּרָה. אָמַר לָהֶן רַבִּי שִׁמְעוֹן: אִלּוּ לֹא הָיְתָה שְׂרֵפָה חֲמוּרָה, לֹא נִתְּנָה לְבַת כֹּהֵן שֶׁזִּנְּתָה. אָמְרוּ לוֹ: אִלּוּ לֹא הָיְתָה סְקִילָה חֲמוּרָה, לֹא נִתְּנָה לַמְגַדֵּף וְלָעוֹבֵד עֲבוֹדָה זָרָה. הַנֶּהֱרָגִין בַּנֶּחֱנָקִין, רַבִּי שִׁמְעוֹן אוֹמֵר: בַּסַּיִף. וַחֲכָמִים אוֹמְרִים: בַּחֶנֶק:

If a murderer merges with a group of people none of them are culpable; Rabbi Yehudah says that they are [all] to be incarcerated. When several people found guilty of capital offences merge into one group the most lenient mode of execution is to be applied: [if] those condemned to stoning [become merged with] those condemned to burning, Rabbi Shim'on says they must [all] be stoned since burning is the more severe mode; the rest of the sages say they are to be burned since stoning is the more severe mode. (Rabbi Shim'on retorted that were it not for the fact that burning is the more severe mode it would not be applied to the daughter of a priest found to be a fornicator. They responded that were it not for the fact that stoning is the more severe mode it would not be the mode appropriate for blasphemers and idolators.) [If] those condemned to decapitation [become merged with] those condemned to strangling, Rabbi Shim'on says that they must [all] be decapitated, and the rest of the sages say that they must be strangulated.

1:
I must confess that this mishnah seems to have the sages differing on some of the more grotesque and gory details of the four modes of execution, stoning, burning, decapitation and strangulation. Therefore, let me say at the outset that I do not believe that the discussions in our mishnah reflect historical situations, but rather these rather doubtful situations are used as a sounding board for the sages to expatiate on their theoretic views. When we find the sages discussing what to do with prisoners condemned to several different forms of execution that have become mixed up there are some who would doubtless see this as proof of the fact that there were courts which condemned many prisoners in one session. I do not share this view. It is not the way of the Mishnah to engage in theoretic philosophizing, but principles are derived from concrete situations. Therefore, rather than have an academic discussion on the (presumed) relative lenience of the four modes of execution, the principle becomes apparent from a discussion on a concrete situation – however far-fetched. That many prisoners were judged, condemned and executed on the same day and by the same court – so many that the court officials got them all mixed up! – is a very unlikely historical possibility. Imagine someone discovering two thousand years hence a discussion concerning the relative merits or demerits of judicial death by strangulation (hanging), electrocution, being gassed to death, being dispatched by a lethal injection or having your head chopped off by the guillotine: this would certainly not indicate that there were courts in the western world in the 20th century that could choose which of these modes to apply in any given case.

2:
Our mishnah discusses two situations. The first situation concerns what happens when it is not clear who the murderer is. The second situation concerns what happens when it is not known to which kind of death the prisoner was condemned by the court.

3:
The first section of our mishnah discusses a situation in which someone commits a murder and it is known that the murder must have been committed by one of a number of people but it is impossible to say which one it was. (We can imagine a situation in which three people shoot simultaneously at a target, one deliberately misses the target and in order to kill his victim who is standing nearby, but it is impossible to determine from whose gun the fatal bullet was fired.) Our mishnah presents two views. The second is that of Rabbi Yehudah bar-Ilai, who holds that all three suspects are to be incarcerated. The rest of the sages do not accept this view and hold that in such circumstances all the suspects are to be released. It is a well-known rule of mishnaic interpretation that where there is a difference of view between one sage and many more, the Halakhah follows the majority. Therefore, in our case, all the suspects would be released.

4:
The Gemara [Sanhedrin 79b] asks the most obvious question concerning the first part of our mishnah: who are "the others" in the group? The Gemara thinks that it is highly unlikely that our mishnah refers to a murderer who is part of a group whose other members are innocent (as in our above illustration) since this is so obvious: a court cannot punish someone unless it has been proven that they have committed an offence! But is this not exactly what Rabbi Yehudah bar-Ilai seems to be suggesting? Several solutions are proposed, none of which seems really convincing. The conclusion of the Gemara is that the sages accept the principle that you cannot punish an innocent person (and, as we have already noted, that is Halakhah). The Gemara eventually suggests that Rabbi Yehudah is not referring to human beings at all, but to oxen that have been condemned for goring. Given the subject of the mishnah and its wording, I, for one, find this a most far-fetched solution. It seems to me, rather, that Rabbi Yehudah holds that murder is so heinous an offence that it cannot go unavenged even when it is not known exactly who is the murderer: all the potential murderers (the suspects) in the case must be incarcerated, so that the one who really is the murderer will be punished among them. Rabbi Yehudah's view seems to be fed by the fact that the Torah [Deuteronomy 21:1-9] has a ceremony to be observed when a corpse is found in the open countryside and it is not known who the killer was. The main thrust of the ceremony is to ensure that the inhabitants of the nearest town do not bear blood-guilt on account of the unavenged murder. It seems to me that Rabbi Yehudah's reticence in concurring that no one should be punished is residual from the original horror at the vicious and nefarious taking of a human life going unavenged in any way whatsoever. If, without the ceremony mentioned above, the Torah holds the whole population of the nearest township to be sullied by the blood guilt incurred by the death of John Doe, should not them members of a group one of whose members is definitely a murderer be held responsible to some extent? As we have already noted, this is not Halakhah.

Concerning Chapter 9, Mishnah 1 I wrote: (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.)

Lisa Schecter writes:

I've heard that a person who stands by while another person is drowning, or in danger of dying in some other situation, is ĥayav [required to act – SR] as long as his saving the other person doesn't endanger his own life. Is it possible to draw a parallel between this law and the teachings of the above Gemara to say that someone who, for example, is lying by a poolside (in effect not dangering his own life) and someone starts to drown is in effect preventing the drowning person from escaping, thence making the situation a homicide?

I respond:

I cannot agree with Lisa's ingenious reasoning. She is quite correct that the Torah requires us to do everything possible to save the life of another person short of endangering our own lives [Sanhedrin 73a]. Thus, in the situation Lisa postulates, someone lying by a pool in which someone else is drowning is required (all things being equal) to do the most natural thing: to jump in and try to save them. If they do not do so they are guilty of ignoring this commandment ("Do not stand idly by the blood of your fellow" [Leviticus 19:16]). But there is a great difference between someone losing their life because I did not take action to save them and that same person losing their life because I actively prevented them from extricating themselves from the life-threatening situation. In the latter case I am guilty of murder; in the former case I am guilty of criminal negligence. The mitzvah in question ("Do not stand idly by the blood of your fellow") is a negative commandment that has positive implications [She-yesh bah kum asseh], and as such comes under the jurisdiction of a human court.

Saul Oresky writes:

I found part 3 of today's Mishnah [Sanhedrin 118] quite troubling, and the discussion/explanation of it equally so. One can strictly say that there is no xenophobia or racism inherent in that Mishnah (because Maimonides explained that even converts are included in the definition of "fellow Jews") only if one views xenophobia very narrowly. The lower status of the non-Jew (defined here by belief, not by birth) in the eyes of this Mishnah is apparent; the Jew's life is not forfeit if he intentionally murders a non-Jew. Is this not what the Mishnah is saying?

I respond:

First of all let me reiterate what I said in my explanation: there are xenophobic elements in the Jewish tradition – though for each one of them there is probably a corresponding view that negates it. What I said was that in the particular case under review the stipulation of the mishnah is not the result of xenophobic or racist tendencies. It is the result of the sages attempting to restrict to the utmost the applicability of the death penalty mandated by the Written Torah. If Jewish criminal law were in force in the State of Israel today (and it is not) it would mean that of a total world population of six million million souls (I hope I got that right) a Jew could only be capitally charged for the murder of some fourteen million. Saul is right when he concludes that "the Jew's life is not forfeit if he intentionally murders a non-Jew", but his statement is also misleading. His life would also not be forfeit if there were no witnesses to his killing of a Jew, to bring but one example. Throughout our whole study of the tractate since the start of chapter four we have noted time and again the interpretive licence used by the rabbis to restrict almost to the vanishing point the applicability of the requirements of the Written Torah in this regard.

I quoted Maimonides on this matter only to indicate that the consideration was not a racist one, not to vindicate the distinction clearly implied between Jew and non-Jew.