Sanhedrin 092

7:
The first few items in the list of Arayot [forbidden sexual liaisons] are derived directly from the Torah. In Leviticus 18 there is a list of such forbidden unions. This list forms the traditional reading from the Torah on the afternoon of Yom Kippur. Possibly it was chosen for reasons of pure convenience, since it follows immediately after the description of the Yom Kippur sacrificial ritual which is read in the morning, thus obviating the necessity to roll the scroll to another place or to prepare two scrolls. If that is indeed the reason then, in my opinion, it is not only fortuitous but also fortunate: it is most appropriate that we be reminded on the day on which we crave Atonement for our sins of the Torah's requirement of sexual propriety, a requirement the opposite of which is flaunted in almost all the mass-media on a daily and hourly basis. And since the world has never known communications media on the scale that we know them, this means that licentiousness to a greater or lesser degree is thrust upon us and our families almost every time we open a newspaper, turn on the television (even just to watch the news!) or go out for entertainment. It is salutary to be reminded at least once a year that according to the Torah sexual restraint is the norm not a curiosity!

8:
Leviticus 18:7 forbids the sexual union of a man with his mother; verse 8 forbids the sexual union of a man with a woman who is his father's wife (while not being his mother); verse 15 forbids the sexual union of a man with his daughter-in-law; verse 21 forbids the worship of Molekh; verse 22 forbids a sexual union between two males; and verse 23 prohibits bestiality.

9:
Molekh (or Milkom) was the god of the Ammonites, a people whose territory was in Transjordan: the name of the city of Amman, the capital of the kingdom of Jordan, comemorates the Ammonites to this day. It was long considered that the worship of Molekh consisted of the sacrifice of children by burning, and this certainly is the impression left by some of the prophets. However, rabbinic tradition, relying more closely on the exact wording of the Torah legislation, offers two different understandings of this worship. The sages understand the worship of Molekh as involving a ceremony in which one's child was dedicated to the god by "passing through the fire" – whatever that might mean; alternatively it involved copulation with a non-Jewish woman in order to dedicate the child to Molekh.

Robert Kaiser writes:

While following the discussion, I suddenly recalled that during this entire timeframe (before 30 CE to 200 CE) Israel was under Roman military occupation. I read previously that after the Romans came, the Sanhedrin lost the right to judge and enforce capital punishment cases. How do we read the Mishnah in light of this, especially since one of the sages we noted claimed to have seen such an execution himself (as a child) around 30 CE or so? When did the Sanhedrin lose its powers in these matters?

I respond:

We have already discussed this matter either directly or indirectly on several occasions. In Sanhedrin 079 I wrote:

This is one of the main reasons why we have repeated on several occasions that the minutiae of the descriptions of the various modes of execution which we are presently discussing are distinctly unhistorical and purely the result of textual exegesis.

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In Sanhedrin 091 I wrote:

Of the seven sexual offences mentioned in our mishnah it seems to me that most would still be considered "unnatural" by all sections of our society: even the recognition of the Oedipus complex does not bring about a general approbation of copulation between a mother and her son or between a man and his son's wife and so forth. In my innocence I would also assume that more than ninety-nine people in every hundred would consider bestiality [copulation between a human being and another kind of animal] as being "inappropriate" to say the very least! … copulation between two males is categorized as an Ervah, but our modern society looks upon it with anything ranging from approval through indifference to condemnation.

Ron Kaminsky writes:

I think a more pointed question is: how many of us would be willing to execute someone for these offenses? And how would we compare these offenses (between consenting adults) to the situation of a father marrying off his 10-year-old daughter to a man who subsequently has sex with her? I think a lot of the reaction to homosexuality is "diluted" because of the plain fact that in this imperfect world, condemning homosexuality leads to personal condemnation which leads to violence of various degrees against homosexuals. I don't have a strong feeling that my personal feelings against homosexuality should make it right for either me or society to persecute homosexuals, for example. And of course, we have the inverse egalitarian problem here, considering that female homosexuality isn't even a capital offense!

I respond:

There is no doubt whatsoever that traditionally rabbinic Judaism has always understood the requirements of the written Torah in the light of the changing mores of the times. The issue of capital punishment, which is one of the main topics of our Tractate, most beautifully illustrates this fact. The written Torah condones, advocates and requires capital punishment for a variety of crimes and misdemeanours. Time and again, in our studies over the past few weeks, we have seen how the rabbis interpreted and re-interpreted the text of the Torah to make it conform with their standards and mores. I would refer you to the shiur in Sanhedrin 070 in which we discussed at great length the efforts of the sages to almost eliminate capital punishment for murder. And since then we have seen on several occasions how textual exegesis often enabled the rabbis to soften a requirement or even to eliminate it for all practical purposes.

There were two basic ways in which this was done: either the original text of the Torah was "re-understood" in the light of new exegesis; or the rabbis quite simply enacted a rule "for the good ordering of the world". One example of the enactment of a rule [Takkanah] will suffice for illustrative purposes. According to the written Torah a man may divorce his wife at will. All he has to do is to cause a bill of divorce to be drawn up and delivered to her. Indeed, he does not even have to deliver it personally! He can appoint an agent to deliver the Deed of Divorce [Get Piturin] to his wife (or even to her agent). According to Torah, a man may cancel the Deed before it has been delivered, since it is not his signature that creates the divorce but the receipt of the Deed by his wife. Rabban Gamli'el [President of the Sanhedrin during the first quarter of the 1st century CE] enacted "for the good ordering of the world" that once a man had appointed an agent to deliver a Deed of Divorce to his wife he could not rescind it except in the presence of the agent he had appointed (or directly to his wife), even though Torah law does not so restrict him. Rabban Gamli'el enacted this Takkanah in order to prevent a situation in which a woman thinks she is divorced because she has received a Deed of Divorce from her husband via his agent, but in fact is still married to him because he canceled the Deed after the agent went on his errand. The Gemara [Gittin 33a] asks how it is possible for the sages to deny a person a right which the Torah accords him? This is really serious, because in the case under discussion it means that the rabbis are declaring a woman to be divorced when the written Torah is saying that she is still married! How was this feat achieved? By utilizing another principle, which states that any Bet Din has the right to confiscate a person's property [Hefker Bet Din Hefker]. Thus all they were doing, says the Gemara, is confiscating retroactively the object with which the man effected the original Kiddushin. If the man didn't own the object (a ring, for example) with which he effected Kiddushin the marriage was never a valid one in the first place, and the woman does not have to be divorced at all! I have detailed this issue in order to illustrate the hermeneutic lengths to which the sages were prepared to go in order to put right what they considered to be a wrong "for the sake of the good ordering of the world" – even when what they wanted to achieve was contradicted by the written Torah.

Another method used, as we have noted, was re-interpretation of a Torah text in order to ameliorate or obviate a problematic Torah requirement. How this might shed light on the issues raised in Ron's comment will be elaborated upon in our next shiur…