The Talmud is a compendium of laws and legal opinions, and it presupposes the existence of a functioning court system. But a Jewish court, a beit din, is different in fundamental ways from the court of a state like the United States or, for that matter, Israel. Instead of being appointed by the government and staffed by salaried professionals, a Jewish court is made up of expert rabbis resident in the area, who serve as volunteers. In most cases, three judges serve to constitute a court; in more serious cases, where capital or corporal punishment is on the agenda, 23 judges are required. This commingling of sacred and secular is fitting, because halakhah, Jewish law, is not simply a code for the regulation of human behavior. It is a set of commandments given by God (though elaborated by human interpreters). To be a judge is to fulfill a religious duty: “God stands in the congregation of God; in the midst of the judges he judges,” says Psalm 81.
Yet that duty, as Daf Yomi readers saw in chapter one of Tractate Sanhedrin, is an onerous one, for several reasons. It is unpaid labor, which makes it a financial burden: A judge “does not do what is necessary to provide for the needs of his house, and he enters his house empty-handed,” says Rav in Sanhedrin 7b. Worse, however, is the moral responsibility of judging: “If only his entry will be as his departure,” Rav continues, by which he means that a judge is lucky if he comes home at night as free from sin as when he left in the morning. Judges are only human, which means they will sometimes make mistakes, but these are mistakes with enormous spiritual and worldly consequences. “A judge should always view himself as if a sword is placed between his thighs and Gehenna is opened up beneath him,” says Rabbi Yonatan. One wrong move means going to hell.
No wonder that when Rav Huna was judging a case, he would “gather and bring 10 rabbis from Rav’s study hall,” in order to share the burden of responsibility. As Yehoshua ben Levi says, “If 10 judges are sitting in judgment, a prisoner’s collar hangs around all of their necks,” since they will be punished by God for a false verdict: “any judge who takes from this litigant and gives to that litigant unlawfully, the Holy One, Blessed be He, takes his soul from him.” When he goes to the courtroom, a judge “goes out to death.” Indeed, the fate of the entire community rests on the actions of its judges: “Every judge who does not judge according to absolute truth causes the Divine Presence to withdraw from Israel,” the Gemara holds.
Yet the suspicion arises that perhaps the rabbis put such stress on the dangers of judging because the office also involved a certain temptation—not financial, but in terms of status. In Sanhedrin 7b, we read about how a “convoy of scribes” would follow Rav around, and crowds would carry Mar Zutra on their shoulders. The power of a judge added to the prestige of a Torah scholar is a heady mixture, and the best judges take care not to be intoxicated by it: “For power is not forever, and does the crown endure for all generations?” Mar Zutra would remind himself, using a verse from Proverbs.
It is because they recognized the moral responsibility of judging that the rabbis were so hesitant to impose extreme verdicts, especially the death penalty. The law code given in the Torah is full of capital crimes: everything from adultery to idol worship to violating Shabbat to disobeying your parents can be punished by death, often by the particularly horrible method of stoning. But by the Talmudic era, it is clear that judges had lost their taste for such bloody punishments. Indeed, they introduce such high barriers to the imposition of capital sentences that, in practice, the death penalty could almost never be used.
In Sanhedrin 9a, the Gemara lays down the procedural requirements for capital punishment: “The court executes them only when the following elements are present: the congregation; and witnesses; and forewarning.” The congregation of Israel imposes judgment by proxy, through the panel of judges. There must be two eyewitnesses to the crime, and those witnesses must have warned the suspect explicitly that he was about to commit a capital crime. Moreover, Rabbi Yehuda adds, the warning must include “by which form of the death penalty he is to be killed.” If the suspect is warned that he is liable to death, but not specifically liable to stoning or strangling, then he cannot be executed.
This rule raises the question of whether Jews can be expected to know Jewish law. Apparently, the rabbis believed that they could not. Even in the case of major crimes, a person would have to be explicitly informed about the potential consequences of his action, presumably because he didn’t already know it. Only a minority of Jews could be assumed to be familiar with halakhah; these were the people known as chaverim—literally, “friends”—who were evidently a religious elite; comparable, perhaps, to the Orthodox today. So the question arises: Does a chaver need a forewarning before he commits a crime, or should it be assumed that he already knows the law? Here the rabbis disagree, with the majority sticking to the rule that forewarning is necessary. Evidently, the purpose of the warning is not only to inform the would-be criminal of the law but to give him an extra chance to desist.
Obviously, these requirements could almost never be met in real life, particularly in the case of sins like adultery, which generally take place without witnesses. But the rabbis go on to add even more barriers to a guilty verdict. According to Rabbi Meir, whose opinions usually form the basis of the Mishna, any inconsistency in the witnesses’ testimony, even the most trivial, is grounds for dismissing that testimony. Yochanan ben Zakkai once heard a case in which the testimony hinged, in an unexplained manner, on “the stems of figs”—by which the Talmud seems to mean, the color and shape of the figs. When the two witnesses disagreed about this, Yochanan dismissed their testimony, causing the case to collapse.
The primary role played by witnesses in a Jewish court case raises an interesting question. Can the accused be a witness against himself? In Sanhedrin 9b, the Gemara considers of a man who is raped by another man. In this case, the victim can be considered a witness to the crime, so that only one additional witness is required to make the requisite two. These two can take it upon themselves to kill the rapist because they are carrying out Torah law.
To us, of course, the crime in this situation is the rape, not gay sex. But Leviticus holds that “sodomy” itself is a capital crime, even if the sex between men is consensual. This raises the question of what happens when the “victim” of sodomy engages in it voluntarily. Such a person, under Torah law, is considered “wicked” (rashah), and the Torah prohibits accepting the testimony of the wicked: “Do not put your hand with a wicked person to be an unrighteous witness.” So can a person convict himself of wickedness by confessing to it? There seems to be a logical contradiction involved: A criminal who confesses is declaring himself a rashah, and the testimony of a rashah is inadmissible, so the testimony of the man that he is a rashah would be inadmissible as well.
According to Rava, this case falls under the category of testimony that is forbidden because it applies to a relative. Ordinarily, a man is not allowed to be a witness in a case involving a family member, whether he is testifying for or against the accused. Rava reasons that “a person is his own relative,” and so this rule extends to self-accusation: “A person cannot render himself wicked by his own testimony.” However, his testimony about the same incident would be considered reliable when it is directed against someone other than himself. This leads to the paradoxical result that, if two men have consensual sex, one can procure the execution of the other while remaining innocent himself. However, it can only be the passive partner in “sodomy” who makes the accusation, since in the eyes of the law he is the “victim” of the act, while the active partner is the guilty party. The absurdities of this situation are a good sign that it is criminalizing gay sex that is truly rashah.