Sanhedrin 073
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BET MIDRASH VIRTUALI
of the Rabbinical Assembly in Israel
RABIN MISHNAH STUDY GROUP
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כָּל הַמַּרְבֶּה בִבְדִּיקוֹת הֲרֵי זֶה מְשֻׁבָּח. מַעֲשֶׂה וּבָדַק בֶּן זַכַּאי בְּעֻקְצֵי תְאֵנִים. וּמַה בֵּין חֲקִירוֹת לִבְדִיקוֹת? – חֲקִירוֹת, אֶחָד אוֹמֵר אֵינִי יוֹדֵעַ עֵדוּתָן בְּטֵלָה; בְּדִיקוֹת, אֶחָד אוֹמֵר אֵינִי יוֹדֵעַ וַאֲפִלּוּ שְׁנַיִם אוֹמְרִים אֵין אָנוּ יוֹדְעִין, עֵדוּתָן קַיֶּמֶת. אֶחָד חֲקִירוֹת וְאֶחָד בְּדִיקוֹת בִּזְמַן שֶׁמַּכְחִישִׁין זֶה אֶת זֶה, עֵדוּתָן בְּטֵלָה:
The more one questions during 'examination' the better. We are told that ben-Zakkai once questioned about the stalks of figs. What is the difference between 'investigation' and 'examination'? If one of the witnesses says 'I do not know' during 'investigation' the evidence is dismissed; but in 'examination' if one says – or even both say – 'I do not know' their evidence is acceptable. But both in 'investigation' and in 'examination' when they contradict each other their evidence is dismissed.
EXPLANATIONS:
1: 2: To be continued. DISCUSSION:
In our last shiur we learned that it was necessary for the witnesses to warn the the accused that he was about to commit a capital crime – otherwise their evidence was meaningless. Michael Simon writes:
I have known for some time of the requirement that the defendant be warned that he was committing a capital offense in order for the charge to be sustained. I would like to know what is the basis for this requirement and why the sages felt it was so important. I can't think of any other crime where such a warning is required and even with regard to sins where the punishment is death, man is considered to be forewarned. I respond: Michael is here confusing two issues. It is true that it Halakhically axiomatic that "a human being is always forewarned" [Mishnah, Bava Kamma 2:6]. However, this is true only of his responsibility for his actions as regards his liability for payment of damages in Dinei Mamonot. It does not cover Dinei Nefashot. Almost one year ago I wrote:
Three of the Mishnah's most studied tractates (Bava Kama, Bava Metzi'a and Bava Batra) are devoted to what Western jurisprudence would call "torts" – damages claimed as the result of someone else's actions towards you. One of the main Torah bases concerning our responsibility is to be found in Exodus 21:28-32. Basing itself upon the stipulation of the Written Torah that people are responsible for the actions of animals in their charge, the Unwritten Torah enlarges upon this: not only are we responsible for the actions of our animals, but we are responsible for damage caused by anything in our charge. The … "Law of the Ox" differentiates between culpability for a "first-time offender" (where the owner only pays half-damages, because he may not have known that his animal might cause damage) and the culpability of an owner whose animal has already "been in court" – "warned" is the term used by the Torah (verse 29). I mention all this in order to make one point: Torah Law does not view human beings like the rest of the animal world. A human being who causes damage can never claim that "this is only the first time": Adam mu'ad le'olam – a human being is always considered as having been "warned"… A human being can never claim that it was not to be expected that he or she could behave in this or that dangerous way. If this is the case with the human animal (who must always be kept under restraint because it is always capable of doing damage to others), it seems to me all the more obvious that this would be the case with other animals who may be considered dangerous lekhatĥilah, from the start.
My statement thus becomes clear: the axiom that "a human being is always responsible for his actions" only applies to Dinei Mamonot and not to Dinei Nefashot. In order for a person's life to become forfeit we have to be certain that they were aware that the action they were about to perform was a capital offence and performed that act deliberately and with awareness of its legal repercussions.
Michael asks what is the basis for the requirement that the accused be warned and why the sages felt it was so important. I respond: This issue is dealt with in the Gemara [Sanhedrin 40b-41a], where the following Baraita is quoted:
'Did you warn him?' – if he accepted the warning he has permitted himself to be executed.
On this Baraita there follows the following discussion of the Gemara:
Where are we told this in Scripture? Rava … says that the words Yumat ha-met in Deuteronomy 17:6 may be interpreted as meaning that only when the culprit has delivered himself unto death [may he be executed by the evidence of the witnesses mentioned in that verse].
However, it seems that the Gemara realizes that this explanation is wanting, for it adds:
Rabbi Yosé the son of Rabbi Yehudah says that a sage [when he is the alleged perpetrator of a capital crime] does not require warning, because a warning is only given in order to distinguish between intentional and unintentional homicide.
It this becomes clear that the purpose of the warning was to make it possible to prove in court that the crime was committed with full awareness of the severity of the deed. If it was not thus possible to bring a charge of murder, it would be better to bring a charge of manslaughter – i.e. unintentional homicide.
Cheryl Birkner Mack writes: In the discussion of the requirements for witnesses, it seems extremely unlikely that anyone could be convicted in a case of dinei nephashot. I have heard however that in actuality the rabbis found a way around these requirements to find away to bring "appropriate" punishment even when two unrelated witnesses cannot be found who properly warned the accused, etc. Can you verify or clarify please. I respond: I have already hinted in my response to Michael Simon that the whole thrust of the sages' interpretation of the Biblical requirements seems to have been in order to make it almost impossible to require the death penalty. This did not, of course, mean that they were prepared to let such people off scot free! The Torah provides a completely different course for manslaughter – a course in which the culprit delivers himself up to trial in one of the six cities of refuge. If it was proven at the trial that he had indeed committed unintentional homicide, then he was to reside in the city of refuge. There he could lead a normal life (and be joined by his family) with the exception that he could not step beyond the township limits. His term in this kind of 'open prison' came to an arbitrary end with the death of the current High Priest. In order to achieve a similar aim the sages greatly refined the distinctions between premeditated and unpremeditated homicide, recognizing such distinctions as 'willful murder', 'nearly willful manslaughter', homicide through negligence, through accident, 'nearly unavoidable homicide, homicide under duress – and even justifiable homicide. All this is summarized by Maimonides in chapters 3 – 6 of Hilkhot Rotze'aĥ. However, it is obvious that according to all we have learned so far there would inevitably be cases in which the judges would have "no reasonable doubt" that the accused had committed the alleged crime, but that the technicalities of the law as we have described them would exonerate him. Under such circumstances the mishnah [Sanhedrin 9:5] states that "one who commits murder with no (acceptable) witnesses is held in a cell and minimally fed on bread and water". And on that merry note we conclude our shiur for today! Don't forget to light the first ĥanukah candle tonight. Ĥanukah Samé'aĥ to everybody. |