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Put to Death For Crimes Yet to Be Committed

‘Daf Yomi’: The odd case of preemptive punishment highlights Talmudic rabbis’ generous interpretation of the Torah’s unenforceable laws

Adam Kirsch
October 03, 2017
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Still from 'Minority Report,' 2002.Image via YouTube

Literary critic Adam Kirsch is reading a page of Talmud a day, along with Jews around the world.

A recent article in the Atlantic explored the nightmarish subject of psychopathic children. Evidently, psychologists can sometimes tell if a child as young as three or four years old is a violent psychotic. (The article describes a girl, “Samantha,” who started “killing” her stuffed animals when she was six years old, then moved on to strangling her brother.) But since there is no effective treatment for such children, doctors and parents are left with a dilemma. How can you preemptively lock up a child for a crime he hasn’t yet committed?

This week’s Daf Yomi reading, in Chapter Eight of Tractate Sanhedrin, showed the rabbis wrestling with precisely this moral quandary. The chapter deals with apparently unrelated types of crimes and criminals, including a “stubborn and rebellious son,” a burglar who breaks into a house at night, and a “pursuer” who is on the verge of killing or raping someone. What these cases have in common is that they all call for preemptive punishment. Each of these individuals can be put to death without a trial, in anticipation of the crime they are likely to commit. As the mishna says in Sanhedrin 71b, the sentence is imposed “on account of his ultimate end”—not for what he has done, but for what he is going to do.

The Talmud actually considers this kind of execution an act of kindness to the person who is executed. “The death of the wicked is beneficial to them,” since it spares them from committing sins that would endanger their souls. Yet preemptive punishment runs counter to the basic principles of Jewish law, which, as we have seen over the last several weeks, does not punish capital crimes unless they are committed in the presence of witnesses. How do the rabbis justify punishing crimes that haven’t been committed at all? In the case of the stubborn and rebellious son, the answer is that they go to great lengths to avoid inflicting such punishment.

I have often written in this column about the Talmud’s discomfort with various provisions of Torah law. Indeed, any time there is something in the Torah that strikes modern Jews as unjust or barbaric, the odds are that the rabbis of the Talmud felt the same way. The Talmudic discussion of the stubborn and rebellious son, ben sorer umoreh, is perhaps the most famous example. In Deuteronomy 21, the Torah says that the parents of such a son have the right to sentence him to public execution by stoning:

If a man has a stubborn and rebellious son, who will not obey the voice of his father or the voice of his mother, and that, when they have chastised him, will not hearken to them. Then shall his father and his mother lay hold of him, and bring him out to the elders of his city and to the gate of his place. And they shall say to the elders of his city: This son of ours is stubborn and rebellious; he will not obey our voices; he is a glutton and a drunkard. And all the men of his city shall stone him with stones that he die, so shall you put evil away from among you, and all Israel shall hear and fear.

This seems straightforward enough, and quite in keeping with the patriarchal ethos of the Torah (and other ancient societies: a Roman paterfamilias also had the legal power to execute his children). But no sooner do the rabbis take up this passage than they begin to introduce limitations and restrictions. For instance, since the Torah says nothing about the age of the son, one might assume that any son was subject this law. But the mishna in Sanhedrin 68b begins by asking, “From when does a stubborn and rebellious son become a stubborn and rebellious son?” That is, how old does he have to be to be liable to punishment? The answer is derived by interpreting each word of the Torah in a technical sense. “If a man has a stubborn and rebellious son”: this means that the son must have the legal status of a son, and not of a grown man; but it also means that the son cannot be a legal minor, because minors are not required to perform mitzvot. (Daughters, of course, are ruled out completely—not because they never misbehave, the rabbis note, but simply because of the Torah’s language.)

In practical terms, then, how does one define the age between childhood and adulthood? The mishna gives a developmental test: “From when he grows two pubic hairs until he has grown a beard around.” (It is immediately explained that this is a reference to the “lower beard,” that is, hair around the genitals, rather than the “upper beard” on the face.) And how long does it take for pubic hair to grow? According to the Gemara, “the entire time is only three months.” In this way, an apparently open-ended Torah commandment is given an extremely narrow window of application. A child can only be a “stubborn and rebellious son” for three months—less if his pubic hair happens to grow in faster, as the Gemara explains.

Having defined “son” in this way, the next mishna, in Sanhedrin 70a, goes on to define the crime itself—stubbornness and rebelliousness. These are abstract terms that allow for a good deal of ambiguity; how is a court to decide whether a son has committed exactly the offense the Torah had in mind? The rabbis answer by zeroing in on the only concrete description of the son’s sins used in the Torah passage: “a glutton and a drunkard.” Evidently, this crime involves eating and drinking to excess. But how much do you have to eat and drink to be guilty of gluttony and drunkenness? The mishna gives an answer: “a tarteimar of meat and a half-log of Italian wine.”

As always, the Talmud wants to turn the Torah’s general pronouncements into specific, measurable, and enforceable rules. But these terms of measurement were already puzzling to the Aramaic-speaking amoraim of the Gemara, just as they are to us today: “Rabbi Zeira says: this tarteimar, I do not know what is.” Later commentators, the Koren Talmud explains, also wondered about the term “Italian wine.” Does this mean that the wine must come from Italy? Apparently not, they decided; rather, Italian wine was a technical term referring to either quantity or alcoholic content.

But are eating and drinking always a sign of a criminal disposition? Surely not, the rabbis agreed: everything depends on the circumstances. If the son ate and drank these amounts “with a group assembled for the performance of a mitzvah”—for instance, at a mourner’s feast—he has done nothing wrong. One might think that eating non-kosher meat would be incriminating because it tends to show that the son does not obey Jewish law. But in fact, the mishna explains that eating non-kosher meat is not a sign of “stubbornness” in the legal sense—presumably because this meat is not truly meat according to the law.

Again, one might think that over-indulgence in fowl or fish would be the same as eating meat; but the Talmud specifies that only actual meat renders the son liable. And the Gemara imposes further specifications. The meat and drink must be inexpensive because gluttons and drunkards typically buy cheap stuff. Rav Huna adds that the meat must be eaten raw and the wine must be undiluted—both atypical ways of consuming and therefore signs of unrestrained appetite. The next mishna adds that the meat and drink must be stolen by the rebellious son from his father and eaten on someone else’s property; gluttony committed at home doesn’t count. Furthermore, both parents must concur about the son’s punishment—if either the mother or the father wants to spare him, he cannot be executed.

But the clearest sign of the rabbis’ intention in introducing all these qualifications comes in Sanhedrin 71a, where Rabbi Yehuda says: “If his mother is not suited for his father, he does not become a stubborn and rebellious son.” According to the Gemara, what this means is that “if his mother was not identical to his father in voice, appearance, and height, he does not become a stubborn and rebellious son.” Since no two people are ever identical, much less a husband and wife, it is apparent that the rabbis actually want to make the Torah law unenforceable. Finally, the Gemara says so explicitly: “There has never been a stubborn and rebellious son and there never will be one in the future.”

Here we come to the core of the issue. The Talmud has essentially canceled a provision of the Torah. But if the Torah is God’s word, by what right can the rabbis do this? The answer is that they do not believe, or admit, they are introducing any novelties into the law. Rather, they are explicating what the law always meant, and so there is no actual change in Jewish practice. No stubborn and rebellious son ever existed in the past, which is why none will ever exist in the future.

But if that is so, then why did God put this law in the Torah in the first place? “Why was it written?” the Gemara asks, and gives a wonderful reply: “So that you may expound and receive reward.” Living by the law is one thing, and it is required of every Jew; but studying and analyzing the law is the real glory of Judaism. Indeed, God makes unenforceable laws simply so that scholars can analyze why they are unenforceable! If someone asked me for a Talmudic passage that encapsulates the ethos of rabbinic Judaism, I think I would choose this one, in all its mercifulness, ingenuity, and love of thinking for its own sake.


Adam Kirsch embarked on the Daf Yomi cycle of daily Talmud study in August 2012. To catch up on the complete archive, click here.

Adam Kirsch is a poet and literary critic, whose books include The People and the Books: 18 Classics of Jewish Literature.

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