Over the last month, as this column has been on hiatus, Daf Yomi readers have explored some of the most dramatic and challenging material in the Talmud so far. That is because Chapters Four, Five, and Six of Tractate Sanhedrin focus on the most extreme punishment of which any legal system is capable: the death penalty. In setting out the justification, methods, and limits of capital punishment in Jewish law, the Rabbis find themselves facing some of the most fundamental ethical questions. What is a human life worth? What are our responsibilities to one another? Is it ever right to take satisfaction in the death of a fellow human being?
Judaism’s answer to that last question is indicative of its general attitude toward capital punishment. In Deuteronomy 21, the Torah commands that whenever a criminal is put to death, his corpse should be exposed by hanging it on a tree. However, “his body shall not remain all night upon the tree, but thou shalt surely bury him the same day; for he that is hanged is a reproach unto God.” What does “a reproach to God” mean? the rabbis ask in the mishna in Sanhedrin 46a? One explanation is that the display of the corpse would serve as a reminder to the public about the criminal’s transgression; “therefore the name of Heaven would be desecrated” whenever a passerby saw the body.
Rabbi Meir, however, has a different understanding of the Torah verse. “When a man suffers” for having committed a sin, Rabbi Meir asks, “what expression does the divine presence use? I am distressed about my head, I am distressed about my arm.” The individual Jew, that is, forms a part of God’s very substance, and when he goes astray he causes God pain, just as we feel pain when our limbs are injured. Granted, God suffers more for the death of the righteous than for the execution of a criminal, but even “the blood of the wicked” is precious to him.
In the Gemara, Rabbi Meir expands on this point using a parable about twins who lived in the same city. One became king, while the other was reduced to being a bandit. When the king had to order his brother’s execution, he commanded that the corpse be taken down immediately, lest “anyone who saw the bandit hanging would say: The king was hanged.” Human beings, the Torah says, are created in the image of God; when a man is executed, it brings disgrace on the divine image, and therefore on God himself. Jews must never forget that any punishment of a human being, even when justified, is an injury to God.
A passage in Chapter Four expands on this point. In a capital case, the mishna says in Sanhedrin 37a, the court would deliberately “intimidate” the witnesses, to impress upon them the extreme gravity of giving testimony that could result in a person’s death. One of the ways this was done was to tell the witnesses, “Adam was created alone, to teach you that anyone who destroys one soul from the Jewish people, the verse ascribes him blame as if he destroyed an entire world.” Because each person is potentially the ancestor of countless unborn generations, taking a single life means snuffing out a whole posterity. Contrariwise, helping a single individual is equivalent to sustaining an entire world. (This is one of the best-known passages in the Talmud, though it is often universalized to refer to “a human soul,” rather than nefesh echat mi’Yisrael, “a single soul from Israel.”)
Capital punishment, then, should only be carried out in a spirit of grief and reluctance. This marks a difference between Jewish law and the Roman law that the rabbis of the Talmud knew all too well. In the Gemara on Sanhedrin 46b, the rabbis point out that the Torah’s procedure for execution is the reverse of that used by the “gentile government.” Rome famously used crucifixion as a punishment, nailing a condemned man to a cross while he was still alive: “First they hang him and only afterward they put him to death.” This was torture, designed to make death as slow and painful as possible. A Jewish court does the reverse, hanging up a corpse only after the execution has taken place.
And even then, the rabbis continue, it should be displayed for as short a time as possible: “How so? They delay the verdict until it is near to sunset, and then they conclude his judgment, and they put him to death, and immediately afterward hang him. One ties him to the hanging post, and another immediately unties him, in order to fulfill the mitzvah of hanging.” The whole process is to be completed as quickly as possible, and the corpse is not to be left exposed to the public.
Still, there is no getting around the central fact that the method prescribed by the Torah for executing most criminals is a violent and barbaric one: stoning. But as is often the case in the Talmud, the Rabbis themselves clearly shared our modern unease with this biblical practice. After all, the Torah was the product of a primitive tribal society of shepherds and nomads, while the Talmud reflects the sensibility of an urban and mercantile rabbinic elite. The rabbis cannot simply annul the provisions of the Torah that they dislike, but they can interpret them so extensively as to render them almost impossible to carry out.
This is what happens when the rabbis describe the process of stoning, in Chapter Six. The process begins when the condemned man is led from the court to the place of execution. The law is concerned to give him every possible chance to escape death. For this reason, a kind of signal relay is set up: a man stands in front of the courthouse with a cloth in his hand, while a second man waits on horseback some distance away. If the judges announce that they have come up with a reason to acquit the condemned man, the cloth is waved, the rider sees the signal, and he immediately sets off to overtake the executioner’s party. Likewise, if the condemned man comes up with a reason why he should be spared, he is returned to the court for a hearing, “even four or five times.” (Contrast this with American law, where last-ditch appeals from condemned prisoners are routinely rejected.)
When an execution must go forward, the stoning is carried out in a way designed to minimize suffering. The condemned man is first given a drink of wine mixed with frankincense as a kind of anesthetic, “in order to confuse his mind.” Then he is pushed off a raised platform, designed to be high enough so that the fall will kill him. This is meant to be a more humane—because it is quicker and less painful—alternative to stoning. As Rav Nachman says in the Gemara, it is a “good death,” in accordance with the Torah’s commandment, “Love your neighbor as yourself.” If the condemned man survives the fall, the first stone is thrown by one of the witnesses who testified against him at trial. Only if this fails to kill him does the entire community join in the stone-throwing; but the Gemara reports that this second stage was never necessary, as the first stone was heavy enough to be lethal on its own.
The requirement that the witness to the crime cast the first stone opens a final, unlikely loophole. What if this witness’ hands were severed so that he couldn’t throw a stone? (This question, raised by Shmuel in the Gemara, reminded me of the similar problem raised in Tractate Yevamot, where the rabbis wondered how to perform chalitza, the ceremony of removing a man’s shoe if the man has no feet.) If the witness has no hands, the mitzvah can’t be fulfilled, and the condemned man is spared. This is only the case, however, if the witness lost his hands subsequent to giving his testimony. If he never had hands to begin with, then a substitute can throw the stone for him.
All this makes pretty clear that the rabbis of the Talmud did not like the idea of stoning, and wanted to keep as far away from it as possible. Still, they lay out the procedure in such detail that it would seem to be a real possibility, if an undesirable one. Yet in Chapter Four, in Sanhedrin 37b, the Gemara lets slip almost parenthetically that, by the rabbis’ time, Jewish courts had lost the power to impose capital punishment at all. According to Rav Yosef, “From the day that the Temple was destroyed, although the Sanhedrin ceased to be extant, the four types of capital punishment have not ceased.” To which the Gemara immediately replies: “Have they not ceased? But they have ceased.” Evidently, after the destruction of the Temple and the loss of Jewish sovereignty, Jewish courts no longer had the authority to carry out capital punishment. This whole area of law, like others in the Talmud, turns out to be entirely virtual—until, of course, the rebuilding of the Temple, which the rabbis fully believed could happen at any moment.
In the absence of a functioning death penalty, how would serious crimes be punished? The rabbis found satisfaction in the idea that God himself would carry out the death penalty. A man who would be liable to stoning will fall from a roof or have his bones broken by an animal; a man liable to decapitation will be killed by thieves; a man liable to strangling will drown in a river. I wonder how fully the rabbis themselves could have believed this because they must have seen many cases where a criminal did not meet with the appropriate death. But as the history of religion shows, the need for moral order in the universe is stronger than merely factual considerations.