Yesterday’s Torah reading included an instruction that “The congregation shall protect the murderer from the hand of the blood avenger”. This phrase – vehitzilu ha’eidah – has become strongly associated with the requirement in capital cases for procedural rules to be tipped in favour of the defendant (see Sanhedrin chap. 4).
The most astonishing statement on the subject comes from Rabbi Akiva, who is not satisfied merely with tipping the scales in favour of the defendant but goes so far as to say that “Had we been on the Sanhedrin, no-one would have been killed”.
Judaism Reclaimed approaches this question based on an essay by Rabbeinu Nissim in Derashot HaRan, which explains that the Jewish criminal system overseen by the Sanhedrin was intended to function alongside a regular government that maintained law and order (this has been discussed in a previous post here).
I was recently revisiting the question of whether Rabbi Akiva’s apparent opposition to the death penalty should be viewed as a mainstream Jewish position, as an exceptional protest against the majority opinions or perhaps as a localised reaction to specific phenomena. It may be necessary to read Rabbi Akiva’s statement in the context of the political and religious dynamics which prevailed in the Tannaic era, as well as other Talmudic teachings.
In particular, Jewish tradition teaches that the Sanhedrin voluntarily moved out of their Temple chambers in order to avoid having to hand down capital sentences. But why would the Sanhedrin have moved out of its Temple chambers so as to avoid punishing murderers? Is this not a dereliction of their duty?
There are insufficient historical sources of earlier Second Temple period to make a definitive assessment, but from accounts of death penalties carried out by Shimon ben Shetach and Yehudah ben Tabbai over a century earlier, it doesn’t seem like earlier courts shared Rabbi Akiva’s reticence for the death penalty.
I recently found a fascinating suggestion made by Rabbi David Zvi Hoffman – somewhat based on Josephus’s account of the political dynamics of the period. According to Rabbi Hoffmann, this course of action was taken by the Court in response to Roman attempts to control and subvert it so that Rome could secure conviction of its own enemies:
Often the most zealous patriots had to be sentenced as robbers and murderers, and the members of the Synedrium then only served as puppets for the Roman power. Thus, as a rule, the Pharisees were then opposed to a death sentence.
It was not only the Romans who pressed the Sanhedrin to hand down convictions. Writing in his Antiquities[20:9], Josephus informs us that the Sadducees, who rejected the rabbinic tradition of the Pharisees, were therefore “very rigid in judging offenders” and therefore displayed a greater enthusiasm than other Jewish sects when it came to convicting those accused of crimes. This was significant because – according to Rabbi Hoffmann – the Romans were promoting Sadducees into the court during this period -- perhaps for the specific purpose of more easily securing convictions for their opponents. The murderous nature of the years leading up to the destruction of the Mikdash, coupled with Roman interference in the running of the court, certainly provides a plausible reason why the Sanhedrin should have felt the need to exile itself, even though that meant having to surrender its authority to hand down capital cases.
These reasons – together with the Sadducees’ apparent enthusiasm for securing convictions in capital cases – may also explain why Rabbi Akiva and his colleagues sought to place such insurmountable legal obstacles before zealous prosecutors. A Mishnah in Sanhedrin provides an eyewitness account by Rabbi Elazar bar Tzadok of an execution which took place in the closing years of the Mikdash era, the details of which did not conform with the law as understood by the rabbinic tradition. When the question was raised as to how the Sanhedrin permitted such an execution to take place, the Talmud answers that it was conducted by a court of Sadducees.
There appears to be considerable evidence, therefore, that the approach to the death penalty exhibited by the Tannaitic sages in Rabbi Akiva’s Mishnah represents a reaction to the exigencies of their troubled era. This still leaves us with a question: what attitude to prosecution of criminal and capital cases might the Sanhedrin have exhibited in less fraught times? Would they have delegated the maintaining of law and order mostly to non-Sanhedrin governmental courts, as the Derashot HaRan suggests, or would they have retained a role in convicting criminals?
Returning to analyse Rabbi Akiva’s statement, the Gemara understands that this avoidance of the death penalty would have been achieved by setting the standards of required evidence so high that it would have been practically impossible for witnesses to answer questions. What emerges from this passage (as well as elsewhere in the Gemara) is that the Sanhedrin enjoyed a great deal of discretion in terms of how it interrogates witnesses and assesses the level of evidence which must be met to secure a conviction.
The Chazon Ish explicitly includes evidential evaluation among the category of legal details which the Torah delegated to the Sanhedrin of each generation to determine based on its own understanding and in accordance with the social and political realities of the nation at that time. Importantly, this means that different courts can resolve this question differently at various points in Jewish history and set the evidential requirements in recognition of the particular needs of their own generation. We should not imagine, therefore, that the hyper-restrictive statements concerning the death penalty which the Mishnah expresses in the first chapter of Makkot necessarily reflect how the court should function under normal circumstances.
First posted on Facebook 31 July 2022, here.
