(4) When Moses charged us with the Teaching, As the heritage of the congregation of Jacob.
Divine Justice in Rabbinic Hands
Meesh Hammer-Kossoy
The tannaim and amoraim greatly restricted the practical applications of biblical punishments. At the same time, they invented alternative punishments that have no roots in biblical mandates, thereby demonstrating that they are not opposed to the notion of punishment itself. This dissertation examines the rabbinic criminal punishment as it is developed in the tannaitic literature and Talmudim, focusing on rabbinic power-conferring rules that permit punishment against Torah law and createa special royal jurisdiction as well as three specific punishments of rabbinic origin: kipah, rabbinic lashes, and the ban.
An examination of these punishments reveals that the rabbis of the talmudic period created a system of punishment that grants individual judges discretion over which punishment to impose, if any, thereby shunning the mandatory sentencing that characterizes biblical punishments. Punishments vary from locality to locality and are dependent on the identity of the offender. Rabbis may also have preferred rabbinic punishments over biblical punishments because their implementation required little bureaucratic or administrative power
You already know that capital punishment nowadays [incountries where it is permitted] is not technically part of the law, for capital jurisdiction has already been canceled. However, as a protective measure, the court can strike and punish extra-legally, not as part of the Torah law, if it is necessary at the time.… If it is true that for general sins they would execute [people] if it was necessary at the time, then it is certainly true of murder, where the Sages were particularly strict, by placing the person in confinement when he killed without witnesses… and this is not
true for other capital offenses...Nevertheless, even if we judge based on necessity, not all punishments are the same, for it is more
fitting to punish a person who killed than a person who only struck; also [it is more fitting to punish] a person who has clear witnesses about the crime than if there are no clear witnesses, or if there are extenuating circumstances…
Now in this case, we should look closely, if we would exempt the murderers from capital punishment technically, from the testimony offered in their favor. It would appear that the first witness, who said that the victim
began the fight and he actually went to attack the judge, can be discounted because no one corroborated this, and his voice cannot stand up to that of the other two witnesses. Also, the witnesses who claim to have visited the victim and said that he had fully recovered from the blow are of no help [to the defendant]. Since [the victim] was hit by a sharp sword, and the Torah testifes that even a small iron [weapon] can kill, the wound should be considered mortal from the beginning. Certainly in this case, where he was hit in his head and his body, this should be seen as being identical to the case where a person is hit by a stone or a fist and the doctors evaluated the wound as mortal, even if he begins to convalesce, since he died at the end, it is reasonable to assume [a connection…].
The reason the murderers are technically exempt from punishment is that there were two of them … nevertheless, as a protection, since [the victim] died by their hands, if you wish to execute them, the option is yours, as they did so in cold blood, with a heavy hand and on purpose, as it appears, since they set their trap for him at night, and did it during the day, and in public, and in front of the important members of the community they would walk with arms against him. However, if you want to be lenient with them, you should break their strong arms, and if you think this will be enough for the necessity of the community, that is also your prerogative. If I were the government-appointed judge, this is what I would do, and I would not be more lenient with them than this, unless the victim’s family requests it. It is enough that we are at all lenient with those who hit fellow Jews with the cruel blow of a sword, mortal blows, and between the two of them causing him to die, by following Rav Huna’s precedent….
Also, with regard to that judge who had the nerve to announce unabashedly in the synagogue, and in front of the leaders of the town, that it was he who commanded this thing [i.e. the attack], and that it occurred on his authority — “his sin is too great to bear”! It is fitting to rebuke him and punish him greatly, as he is the judge of the community, and “the place of judgment is the place of evil,” as he commanded the death of one of hisIsraelite brothers, and the two [defendants] have already killed him based on [the judge’s] command. Certainly
he should have rebuked his son, since he was chasing his fellow with a sword, and he [the judge] saw him with his weapon in front of the community leaders and did not soften [his anger], rather he encouraged him and
said that it was a mitzvah to do this! Now even though he is not technically liable …Rambam has already written [Laws of Murder, 2:4]… “If the courts would like to punish him as a one-time measure, if it is necessary at the time, they have the permission from a royal decree to do as they see fit.”
The claim of the witnesses that it seemed to them that[the judge] was speaking out of great anger constitutes no defense for this wicked judge, for this is the way of all murderers: they kill out of anger and a fight.… “Anger lies in the bosom of fools,” not in the hearts of the country’s judges! It seems to me that not only should this judge be rebuked for his wickedness… but, above this, he should be stripped of his position, and you should uproot this Asherah planted by the alter and that he should never be allowed to be appointed for any position of authority in the community.
This is is what seems to be correct by my estimation, but you know that in this land
we do not judge capital cases, nor do we chop off hands or legs, for judgment is in the hands of the king. Truly you, who sit in judgment and know the custom of sentencing and other judges in your lands, how they treat special cases and the like, do what they would do, and “do not abandon the teaching of your mother.” For truly, as I write this, my hands are shaking, and my knees are knocking; therefore, do not
rely on my opinion for this, only on your own opinion, as the heavens direct you, for my hearing cannot be better than your seeing…
(י) מִי שֶׁנִּגְמַר דִּינוֹ וּבָרַח וּבָא לִפְנֵי אוֹתוֹ בֵית דִּין, אֵין סוֹתְרִים אֶת דִּינוֹ. כָּל מָקוֹם שֶׁיַּעַמְדוּ שְׁנַיִם וְיֹאמְרוּ, מְעִידִין אָנוּ בְאִישׁ פְּלוֹנִי שֶׁנִּגְמַר דִּינוֹ בְּבֵית דִּינוֹ שֶׁל פְּלוֹנִי, וּפְלוֹנִי וּפְלוֹנִי עֵדָיו, הֲרֵי זֶה יֵהָרֵג. סַנְהֶדְרִין נוֹהֶגֶת בָּאָרֶץ וּבְחוּצָה לָאָרֶץ. סַנְהֶדְרִין הַהוֹרֶגֶת אֶחָד בְּשָׁבוּעַ נִקְרֵאת חָבְלָנִית. רַבִּי אֶלְעָזָר בֶּן עֲזַרְיָה אוֹמֵר, אֶחָד לְשִׁבְעִים שָׁנָה...
(10) This mishna continues to discuss the matter of testimony in the case of one who is liable to be executed. Concerning one whose verdict was delivered and he was sentenced to death and he fled, and he then came before the same court that sentenced him, they do not overturn his verdict and retry him. Rather, the court administers the previous verdict. Consequently, in any place where two witnesses will stand and say: We testify with regard to a man called so-and-so that his verdict was delivered and he was sentenced to death in the court of so-and-so, and so-and-so and so-and-so were his witnesses, that person shall be executed on the basis of that testimony. The mishna continues: The mitzva to establish a Sanhedrin with the authority to administer capital punishments is in effect both in Eretz Yisrael and outside Eretz Yisrael. A Sanhedrin that executes a transgressor once in seven years is characterized as a destructive tribunal. Since the Sanhedrin would subject the testimony to exacting scrutiny, it was extremely rare for a defendant to be executed. Rabbi Elazar ben Azarya says: This categorization applies to a Sanhedrin that executes a transgressor once in seventy years. Rabbi Tarfon and Rabbi Akiva say: If we had been members of the Sanhedrin, we would have conducted trials in a manner whereby no person would have ever been executed...
...רַבָּן שִׁמְעוֹן בֶּן גַּמְלִיאֵל אוֹמֵר, אַף הֵן מַרְבִּין שׁוֹפְכֵי דָמִים בְּיִשְׂרָאֵל:
...Rabban Shimon ben Gamliel says: In adopting that approach, they too would increase the number of murderers among the Jewish people. The death penalty would lose its deterrent value, as all potential murderers would know that no one is ever executed.
Halakhah in the Making: The Development of Jewish Law from Qumran to the Rabbis
Aharon Shemesh
Halakhah in the Making offers the first comprehensive study of the legal material found in the Dead Sea Scrolls and its significance in the greater history of Jewish religious law (halakhah). Aharon Shemesh's pioneering study revives an issue long dormant in religious scholarship: namely, the relationship between rabbinic law, as written more than one hundred years after the destruction of the Second Temple, and Jewish practice during the Second Temple. The monumental discovery of the Dead Sea Scrolls in Qumran led to the revelation of this missing material and the closing of a two-hundred-year gap in knowledge, allowing work to begin comparing specific laws of the Qumran sect with rabbinic laws. With the publication of scroll 4QMMT-a polemical letter by Dead Sea sectarians concerning points of Jewish law-an effective comparison was finally possible. This is the first book-length treatment of the material to appear since the publication of 4QMMT and the first attempt to apply its discoveries to the work of nineteenth-century scholars. It is also the first work on this important topic written in plain language and accessible to nonspecialists in the history of Jewish law.
"British Museum bowl, BM 135563"
The Righteous Mind: Why Good People Are Divided by Politics and Religion
Jonathan Haidt
Drawing on his twenty-five years of groundbreaking research on moral psychology, social psychologist Jonathan Haidt shows how moral judgments arise not from reason but from gut feelings. He shows why liberals, conservatives, and libertarians have such different intuitions about right and wrong, and he shows why each side is actually right about many of its central concerns.
In this subtle yet accessible book, Haidt gives you the key to understanding the miracle of human cooperation, as well as the curse of our eternal divisions and conflicts. If you’re ready to trade in anger for understanding, read The Righteous Mind.
(טו) הָרוֹאֶה אֵת חֲבֵרוֹ שֶׁחָטָא, אוֹ שֶׁהָלַךְ בְּדֶרֶךְ לֹא טוֹב מִצְוָה לְהַחְזִירוֹ לְמוּטָב, וּלְהוֹדִיעוֹ שֶׁהוּא חוֹטֵא בְּמַעֲשָׂיו הָרָעִים, שֶׁנֶּאֱמַר הוֹכֵחַ תּוֹכִיחַ אֵת עֲמִיתֶךָ. וְהַמּוֹכִיחַ אֵת חֲבֵרוֹ, בֵּין בִּדְבָרִים שֶׁבֵּינוֹ לְבֵינוֹ בֵּין בִּדְבָרִים שֶׁבֵּינוֹ לְבֵין הַמָּקוֹם, צָרִיךְ לְהוֹכִיחוֹ בֵּינוֹ לְבֵין עַצְמוֹ, וִידַבֵּר לוֹ בְּנַחַת וּבְלָשׁוֹן רַכָּה, וְיוֹדִיעוֹ שֶׁאֵינוֹ אוֹמֵר לוֹ, אֶלָּא לְטוֹבָתוֹ, לְהָבִיאוֹ לְחַיֵּי עוֹלָם הַבָּא. וְכֹל שֶׁאֶפְשָׁר בְּיָדוֹ לִמְחֹת, וְאֵינוֹ מוֹחֶה, הוּא נִתְפָּס בְּעָוֹן זֶה, כֵּיוָן שֶׁהָיָה אֶפְשָׁר לוֹ לִמְחֹת (רמב"ם פ"ו).
(15) If you see someone committing a sin or following a wrongful course, it is a mitzvah to bring him back to the good path and make him aware that he is acting sinfully by committing his wrongful deeds, for it is said: "You must admonish your neighbor." And when you admonish someone, whether it concerns his personal relationships, or something that concerns his relationship with God, you should admonish him privately speaking to him gently with soothing words, letting him know that you are speaking to him only for his own good, to help him merit the life of the World to Come. Anyone who has the opportunity to protest [against a sinful act] and does not speak out in protest, will be held responsible for that very sin, because he could have protested.