Sanhedrin 089

Today's shiur is dedicated by Clifford Fishman in memory of his father, Carl Fishman, whose Yahrzeit falls tomorrow.

1:
After our last shiur I received the following message from Mary Fabrikant:

I'm surprised to see burning listed as a means of execution. One wouldn't think it to be in keeping with the usual care taken to preserve the body, as discussed in the last several shiurim on what to do with the body of a criminal who had been stoned. Cremation of a body is also forbidden. Could you address this?

As you can see, the issue is fully discussed in our present mishnah. In the introduction that I gave to this whole section of our tractate I addressed in general terms the problem that Mary is raising here. In Sanhedrin 079 I wrote:

This last consideration explains the rather strange methodology outlined by our present mishnah. The Torah requires burning as a death penalty: the prime example is Leviticus 21:9, which commands

Faced with the requirement of the Torah that in such (and a few other) circumstances death was to be encompassed by burning they had to so interpret the text as to remain faithful to the premise that death encompassed by judicial process should involve as little physical mutilation as possible. Thus the "burning" was interpreted as internal and not external burning.

2:
Our mishnah divides into three sections, which we label as Reisha, Emtza'ita and Seifa, respectively. The Reisha outlines the basic methodology. Since the name of no sage is attached to this part of our mishnah it is thus labeled as the halakhah approved of by the editor, Rabbi Yehudah the President of the Sanhedrin, and we label this anonymous sage as Tanna Kamma. In the Emtza'ita Rabbi Yehudah ben-Ilai adds a rather gruesome detail to the description given by Tanna Kamma; in the Seifa, Rabbi Elazar ben-Zadok points out that the process thus described is completely unhistorical!

3:
Tanna Kamma describes how the death of someone condemned to death by burning was encompassed. The condemned person (it was a woman more often than not, according to the prescriptions of the Torah, but we shall maintain the masculine forms habitually used by the mishnah) was sunk into midden (mire, manure) up to his knees. This was to prevent the victim's struggles from causing the burning lead to fall on their body instead of reaching their insides. A strong scarf was wrapped inside some soft material and wound round their neck and throat. This, too, was to prevent outward mutilation of the body. The scarves were pulled in opposite directions by the two witnesses until the victim perforce opened his mouth. A taper of burning lead was then dropped into his mouth by a third person.

4:
I am, thank God, no expert in such matters, but it seems to me that it is very unlikely that a taper of burning lead could be introduced into the throat in such a manner. It seems to me that the comment of Rabbi Yehudah in the Emtza'ita rather gives the game away. He says that if the victim dies of strangulation as a result of the efforts of the two witnesses then the burning metal must nevertheless be introduced into the victim's mouth so that it can burn up his inwards, otherwise the mitzvah of burning has not been carried out. (Rabbi Ovadyah of Bertinoro [Italy, 1450-1515 CE approximately], a classical commentator, understands this section of our mishnah as requiring the victim's mouth to be prised open with a vise and not by the use of scarves at all.) His view is not halakhah – and this is pointed out by all the classical commentators. We may therefore infer that the halakhah is that if death was caused 'prematurely' by strangulation that no further action was necessary.

5:
The comment of Rabbi Elazar ben-Zadok is such that from it we may infer that he, at least, was well aware of the historical inaccuracy implied in the sages' method of explication. He states that one priest's daughter found guilty of fornication was burned at the stake – her body being consumed by burning branches and twigs. The Talmud of Eretz-Israel [Sanhedrin 24b] gives even greater validation to his protest:

Rabbi Elazar is thus describing a historical burning which he personally witnessed – and that burning was nothing like the process described by our mishnah! The riposte of his colleagues is unconvincing, to say the least. It may be inferred from their riposte in our present mishnah that they accepted that he saw what he says he saw, but that execution was mishandled because the court administering it was not proficient or competent. Curiouser and curiouser. In the Gemara [Sanhedrin 52b] the Babylonian Amora Rav Yossef [died 333 CE] asserts that the court referred to must have been a Sadducean court: the Sadducees did not accept the oral tradition and understood the text of the Torah literally. Rabbi Elazar ben-Zadok is referring to an incident that he personally witnessed and that incident must have occurred before the year 40 CE [see Sanhedrin 079]. Three hundred years after the incident, Rav Yosef is ironing out the crinkles by claiming that the court involved was a Sadducean court.

In Sanhedrin 088 I wrote: Rambam … points out that the … last sentence of our mishnah merely remarks that in previous mishnayot … we have been given a full description of execution by stoning. The next mishnah … will describe "burning" and 7:3 will describe decapitation and strangulation.

Ron Kaminsky writes:

You have previously pointed out that because the mishnayot were transfered by word of mouth before being written down, they tend to be very concise. Rambam doesn't seem to answer the question which I see, which is why such a superfluous remark is necessary at all?

I respond:

I do not see why Ron sees the remark as superfluous. If the three word sentence (in Hebrew) had been the concluding phrase of chapter 6 no comment of ours would have been necessary at all. Some people relate to Rabbi [Yehudah the President of the Sanhedrin] as the author of the Mishnah, or as its compiler. This is simply not the case. Rabbi edited the Mishnah. That is to say, he arranged the halakhic midrashim of which he approved in a logical order. His great contribution to the development of halakhic Judaism was that he utilized his enormous prestige in order to combat extreme conservatism and set these norms down in writing. However, we must remember always that they were a faithful reflection of material that had reached him orally, and that continued to be taught orally in the various Batei Midrash and Yeshivot. Rabbi may have used editorial discretion as regards what to include and what not to include; but his editorial activities did not include changing the text received via oral tradition.

Ron also has a question concerning Likkut Atzamot that we have discussed over the past couple of shiurim:

Has anyone proposed returning to this ancient practice, at least in Israel, given the fact that it seems that soon there will be a problem to find land for burial purposes, at least in the ever more crowded "Gush Dan" area?

I respond:

I have not heard of such a proposal. Why don't you suggest it to your local Ĥevra Kadisha? But before you do that, I suggest that you ask relatives and friends whether they would be prepared to accept the restoration of this custom. What has been decided in Israel is that in all new cemeteries burial will be two-tiered: one on top of another.