Sanhedrin 079

1:
We come now to the most difficult (and grizzly) part of the tractate: the actual carrying out of an execution – the judicial killing of a man or a woman found guilty of a capital crime. No amount of apologetics will cover up the fact that up to a certain point in Israel's history such executions did take place. However, there is no guarantee whatsoever that when they were carried out that it was according to the procedures described in our tractate! On the contrary, there is every reason to believe that the procedures that will be described in the next four chapters of our tractate were purely the result of academic extrapolation: two preconceived basic premises determined the form of midrash to be used on the Biblical texts. The very few glimpses that our sources give us of actual historical executions present such formidable differences from what is described and developed here by the Mishnah that the Gemara has to declare them to be exceptions or to make excuses for them.

2:
Even if we assume that judicial executions took place according to Jewish law, the Gemara makes it abundantly clear that the Romans deprived the Sanhedrin of this right "forty years before the destruction of the Bet Mikdash" [Sanhedrin 41a]. Furthermore, from the year 70 CE, after the destruction of the Bet Mikdash, the Sanhedrin was precluded from inflicting capital punishment according to Jewish law [Sanhedrin 52b]. Thus, executions by Jewish courts ceased completely from about the year 30 CE at the very latest. This means that most of the discussants in our sources are living a century or more after the last possible date for an execution according to strict Jewish law.

3:
The fact that we find the Mishnah (and the Gemara) discussing in great detail a subject, such as capital punishment, that had for the discussants no practical consequence should not surprise us. The beginning of Chapter Eight of our tractate is devoted to the law of the "stubborn and rebellious son" – five mishnayot and four folios of the Gemara – and there it is stipulated that he is to be put to death by stoning and his body is then to be strung up. Yet it is also stated that a case of Ben Sorer u-Moreh "never happened and it never will happen" and that the law was given merely "that you may study it and receive a reward" for the academic study [Tosefta Sanhedrin 11:6]. (On the other hand in the Gemara Rabbi Yonatan protests "I saw him and sat on his grave" – though it is not clear how this is possible since Rabbi Yonatan lived more than two centuries after 30 CE! He was an arch-opponent of the hermeneutic system propagated by rabbi Akiva and espoused the system of his teacher and mentor Rabbi Ishmael.)

4:
Even more pertinent is a passage of the Talmud which explicitly compares the study of, and the discussion on, the various death penalties with that on the sacrifices. A mode of halakhic procedure was established in the case of the death penalty for an adulterous woman. The Babylonian Amora Rav Yosef asks, "Is there need to establish a halakhah for the messianic age (since only then will the Sanhedrin once again have jurisdiction in capital offenses)?" Abayyé answers, "If so, we should not study the laws of sacrifices, as they also apply only to the messianic age. But we say 'Study and receive reward'". In other words, it is recognized that the subject under discussion is purely academic.

5:
This is also reflected in the language of the Mishnah. Of capital punishment by the sword it is stated that "they used to decapitate him, as the Roman government does at the present time" and Rabbi Yehudah then proposes another method! They can't both be historically correct! The text goes on to state how they used to fulfill the method of death by strangulation. Note that the text uses a phrase such as "they used to". Moreover, Rabbi Akiva, who would have abolished capital punishment altogether [Mishnah Makkot 1:10], enters into the halakhic discussion on it as fully as his other colleagues. What is perhaps the most cogent evidence that the talmudic discussions on the death sentence do not reflect actual practice is provided by a mishnah [Sanhedrin 7:2] in which, as we shall see, Rabbi Elazar ben-Zadok gives evidence of an actual case of death by burning which differed diametrically from that given by the Mishnah. The answer given is that "the Sanhedrin at that time was not competent" and did it all wrongly! The Talmud of Eretz-Israel [Sanhedrin 24b] elaborates: Rabbi Elazar ben-Zadok describes the circumstances under which he witnessed this execution. He says, "I was a child and was being carried on my father's shoulders and I saw it"; to which his colleagues replied "You were then a child, and the evidence of a child is not acceptable." That the incident happened is therefore definite; the sages, it would seem, were concerned with establishing their theoretical view of the law even when it conflicted with the actual practice of the past.

6:
So let us summarize what we have established so far: it would seem clear that the discussions on the various modes of execution and the details of their implementation that will be the material of our shiurim for the next few chapters were made to "study and receive the reward," and that they were purely academic.

7:
I mentioned at the start of this shiur that "two preconceived basic premises determined the form of midrash to be used on the Biblical texts". The first preconceived premise is that the requirement of the Torah to "love your neighbor as yourself" [Leviticus 19:17] was to be interpreted as applying even to the condemned criminal – you love him by giving him the most humane death possible [Sanhedrin 45a]. The second premise is that judicial execution should resemble as much as possible the taking of life by God: as the body remains externally unchanged when God takes the life, so in judicial executions the body should not be destroyed or mutilated [Sanhedrin 52a].

To be continued.