Sanhedrin 084

4:
Our mishnah divides into a Reisha [first section] and a Seifa [last section]. The Reisha is concerned with a Maĥloket [difference of view] between Rabbi Eli'ezer and the rest of the sages. The Maĥloket is concerned with what is done with the body of a criminal after he has been stoned to death (as described in the previous shiur). It is therefore most important for us to understand that the hanging referred to in our mishnah is not hanging for the purposes of causing death (and is not to be confused with strangulation, which is the subject of a later mishnah). The hanging referred to in our present mishnah is a degradation that enacted upon the dead body of the person executed before burial.

5:
The source of this act of degradation is in the Torah:

The phrase that I have quoted also in Hebrew is very difficult to translate because it is susceptible of several connotations. (In the text of this phrase I have given the translation of the Jewish Publication Society of America, 1917, for want of anything better.) The traditional commentators offer several alternatives. We offer here three examples:-

1. Rashi [Rabbi Shelomo ben-Yitzĥak, Western Europe, 11th century CE] seems to be the basis for the JPSA translation I referred to above: "Man is made in the Divine image and it is an affront to the King [that His likeness is being hanged].
2. Ramban [Moses Naĥmanides, Spain, 13th century CE] understands the phrase as indicating that "because he blasphemed God he is hanged".
3. Rashbam [Rabbi Shelomo ben-Me'ir, Rashi's grandson] understands the term 'Elohim' as referring to the judges and not to God. (The term certainly bears this meaning in several places in our scriptures.) When people see a body being thus degraded for more than a minimal period they will feel outrage against the severity of the judges and imprecate them.

6:
Rabbi Eli'ezer in our mishnah is clearly following the Peshat [plain meaning of the Biblical text]: the bodies of all persons executed must be exhibited in this manner post mortem. The view of the sages certainly contradicts the Peshat, and their interpretation must derive from a desire to limit the rather grizzly Biblical requirement as much as possible. The Gemara [Sanhedrin 45b] brings their interpretations as follows:

(Idolatry is obviously a denial of a basic premise of the Torah.)

7:
The Seifa of our mishnah is concerned with the manner of the hanging. The sages deny that the bodies of executed women are to be subject to post mortem exhibition at all; Rabbi Eli'ezer holds that they are so exhibited. Once again, it seems to me that the sages are trying to limit the possible application of the Biblical law by their interpretation. The Torah states: "you shall [then] hang him upon a gallows". Rabbi Eli'ezer interprets the word 'him' as indicating that only the person is to be thus exposed and not his clothes as well; for the sake of decency, then, the females should be strung up nude with their bodies turned towards the gallows and thus away from the people. He does not apply this to the bodies of male criminals. The rest of the sages interpret the word 'him' as indicating 'him' and not 'her'.

8:
The last part of our mishnah is concerned with Rabbi Eli'ezer's attempt to rebut the view of the sages. How can they possibly claim that be bodies of female criminals are not to be subject to post mortem exhibition? There is a well-known historical occurrence in which Shim'on ben-Shataĥ hanged eighty women in one day in Ashkelon! [See Sanhedrin 080 for the details of this story.] The sages respond that that whole episode is questionable, since the rule is that no two people are to be condemned to death of the same day by the same court, so how could Shimon ben-Shataĥ have had eighty women executed on the same day?

9:
The Gemara [Sanhedrin 46a] quotes a very interesting Baraita in this regard, according to which Rabbi Eli'ezer ben-Ya'akov is quoted as saying: "I have heard that a court may inflict punishments not authorized by the Torah; this is not a transgression of the Torah but in order to bolster the Torah". It would seem that what he means is that sometimes extraordinary crimes require extraordinary measures (such as that attributed to Shimon ben-Shataĥ) in order to preserve the rule of law.

In Sanhedrin 084 we described the process of execution by stoning. Ed Frankel writes:

It does not seem logical to me that dropping from the height of two men would be sufficient to execute a killer. At the same time, though, it would be high enough for any onlookers to see what was happening clearly. Although the use of capital punishment to deter crime has not been noted explicitly, I wonder if that might be a factor in this matter? After all, a death sentence out of sight, say from the top of a cliff, would not be as powerful or gruesome an image. As for my assertion that the punishment is deterrent, how can anyone read all the specifics of the halacha and not be detered unless one was not of normal sensibilities? It is almost amazing to me that a potential murderer's state of mind must be checked to see he realizes murder is wrong. I would wonder what would happen if he were also checked to see he understands what would happen to him were he to murder and be found guilty?

I respond:

I disagree with Ed's main thesis here that the purpose of the death penalty in Halakhic jurisprudence is to act as a deterrent. From the Torah itself we have numerous places in which the dual purposes of the death penalty are made clear. Firstly, the person has committed such a grave offence that there is no other way that they can obtain atonement for their sin, according to the Torah. Secondly, in the case of murder, the blood shed has defiled the soil of the holy land, and this defilement can only be cleansed by the death of him who shed the blood that is causing the defilement.

Ed says that "it is almost amazing to me that a potential murderer's state of mind must be checked to see he realizes murder is wrong". This is not quite the case. We have already mentioned on a couple of occasions that the would-be murderer must be warned in order that the judicial process can discern between intentional and unintentional homicide. This is stated quite clearly in many places: see, for example, Bet ha-Beĥirah [Menaĥem ben-Shelomo Me'iri, Provence, 1249-1316 CE] who also addresses Ed's other point: