Sanhedrin, death penalty and criminal law

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”.

We are left asking ourselves how such a criminal justice system could operate. Is Rabbi Akiva suggesting that murderers and dangerous criminals should roam free? After all, there is little evidence of custodial or other sentences being used by a Sanhedrin.

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.

The Sanhedrin: a priestly prerogative or a free-standing judiciary?

The political system of ancient Israel is often lauded for its separation of powers, with a monarchy, priesthood and judiciary each functioning within distinct parameters of responsibility and power. What do we make then of the verse that we will read shortly on Simchat Torah – in connection to the priestly prerogative of the Levites: “They shall rule upon Your laws to Jacob, and [upon] Your Torah to Israel”?

These kohanim, we have already been told, sit in judgment as part of the supreme judicial Court at the Temple: “And you shall come to the Levitic kohanim and to the judge who will be in those days, and you shall inquire, and they will tell you the words of judgment” (Deuteronomy 17:9).

The book of Leviticus adds – as part of its prohibition on kohanim performing their priestly activities while under the influence of alcohol – the requirement that they “instruct the children of Israel regarding all the statutes which the Lord has spoken to them through Moses” (Leviticus 10:11). The prophet Ezekiel (44:24) takes this theme further: “They shall stand in judgment; they shall adjudicate … according to My laws…”.

Based upon these sources, interpreting and ruling upon matters of Torah and judging the people is clearly a function of the priesthood—but this is precisely the sort of role that, the Mishnah and Talmudic sources suggest, was fulfilled by the Sanhedrin as judicial institution that was independent of formal priestly involvement.

Historically, what evidence is there of a connection between the Sanhedrin and Kehunah?

It is hard to reach any definitive conclusion concerning the first Temple period. Aside from Ezekiel's instructions to the kohanim to perform judicial functions, we find that Jehoshaphat established in Jerusalem “judges of the Levites and the priests and of the chiefs of the fathers' [houses] of Israel, for the judgment of the Lord and for quarrels”. This seems to reflect the Torah’s view that the priests did play an important role in the judiciary.

During the early years of the second Temple, when Israel was controlled by Persia and Greece, historical sources suggest that political and religious power of the Jewish settlement – including the judiciary – was controlled by a priestly “gerousia” body. Josephus, himself a kohen, presents the court system as a primarily priestly institution. The rabbinic tradition meanwhile describes great scholars called “Eshkolot” who presided over the system of Torah teaching from the time of Moshe until Yose ben Yo’ezer , a rabbi of the early Maccabean period – but the identity and tribe(s) of these scholars are not clear. What may be significant, however, is that the judicial body charged with interpreting the Torah and overseeing its application underwent a change at the time of Yose ben Yo’ezer.

A Mishnah in Avot (1:4) describes Yose as a student of Antigonus of Socho. It was in Yose’s generation that, according to rabbinic tradition, the religious battle between Pharisees and Sadducees arose and intensified. The Hellenist-influenced Sadducees, who rejected the oral tradition, dominated the priestly and aristocratic classes. Yose, praised in Chagigah (2:7) as “a pious one of the priests” stood firm against the Sadducee challenge but he and his supporters remained in a minority among the priests. It would seem likely that this led the Pharisees, who controlled the Court, to detach the Sanhedrin entirely from the priesthood and establish it as a distinct judicial body.

Thus students of the Mishnah and the oral tradition learn of a judicial institution which is fully independent of and even suspicious of the priesthood. The first chapter of Yoma, teaches that Court representatives would instruct a Kohen Gadol on how to perform the Yom Kippur ceremony before requiring him to swear to conduct it in the manner of the Pharisees rather than the Sadducees. We also find a pointed comment (Horayot 3:8) that a mamzer scholar is more worthy than an ignorant high priest!

Several further Mishnayot describe how various rituals were designed by the Court to demonstrate an open rejection of Sadducee teachings. Thus the harvesting of the Omer on Shabbat was accompanied by pomp and publicity (Menachot 10:3) and the Red Heifer ceremony was carried out in a legally non-preferable manner in order to publicly reject the Sadducee position (Para 3:7). Given the existential threat that the Sadducees were believed to have posed to the transmitted oral tradition, it is not surprising that the Sanhedrin was removed from the Sadducee-dominated priestly grasp.

The Sadducees neither recognised nor wished to participate in a Court which was not based upon the Kehunah – a matter which they understood to be required by the Written Torah. Meanwhile, Josephus ignored the shift in judicial dynamics, perhaps regarding the Pharisees’ move as a temporary suspension of the priestly prerogative rather than a permanent change.

Perhaps the most powerful sources which indicate a strong priestly involvement in the Sanhedrin during the late Second Temple period are found in the New Testament, with the Gospels providing accounts of the trial of Jesus at the Sanhedrin – a trial which was apparently presided over by the High Priest. While some historians consider such sources as being in direct contradiction to the rabbinic tradition, Dr Hugo Mantel (Studies in the History of the Sanhedrin) collects an impressive array of scholarly opinions which reject this claim.

Among the arguments that he advances, Mantel demonstrates that none of the charges that Jesus was recorded as having faced were capital offences that would have been tried by the Sanhedrin, and that there exists no record of the Sanhedrin charging or sentencing to death any member of the numerous branches of Judaism that the Pharisees regarded as heretical. The New Testament sources point instead to Jesus’s crime and trial as having been primarily a political offence for a crime of rebellion against Rome. This would explain why the trial is described as taking place in the High Priest’s residence (rather than in the standard Sanhedrin chambers), and with numerous Sadducees participating in the judgment. Seeing Jesus’s trial in the context of a political rather than religious offence would also make it easier to understand why the Court handed him over to non-Jews for execution in a manner which is biblically prohibited for a Sanhedrin to perform (Deuteronomy 21:23). Both Mantel and Josephus are in agreement that the Court that tried Jesus was not therefore the Great Sanhedrin of the Pharisees, but rather a separate political body which was appointed by and under the auspices of the Roman rulers.

For their part, the sages could not ignore the overwhelming biblical association between the priesthood and the judiciary. However, they understood that such an association was an ideal to which the Court should aspire rather than a mandatory requirement: “It is a mitzvah for there to be priests and Levites in the Supreme Sanhedrin, as Deuteronomy 17:9 states…[but] if appropriate ones are not found, it is permissible for all the judges to be Israelites” (Rambam, Hilchot Sanhedrin 2:2 based on Sifre). The non-priestly judiciary which Moshe established in the desert, and Ezra’s Great Assembly, would seem to support this more flexible interpretation.

The aristocratic Sadducee movement, with its strong Temple focus and lack of a flexible oral tradition, was unable to adapt to the new post-destruction reality, and ceased to exist altogether at that point of Jewish history. Looking to the future, when the opportunity arises for a new Sanhedrin to be formed, we will be left to determine the extent to which it should be a priestly body – as the biblical texts appear to advise – or whether we will preserve the sages’ shift towards a fully independent Court.

First posted on Facebook 26 September 2021, here.

Queen Elizabeth and the Biblical conception of royalty

As an Englishman living abroad, I have been approached numerous times in recent days by my friends and neighbours here in Jerusalem who wished to offer condolences and discuss matters of British royalty. On more than one occasion, they were curious to know what exactly the Queen did and, since she had no recognisably significant role, why people were so upset at her passing.

The function of the Queen within the British political system was perhaps best summarised by the 19th century political theorist, Walter Bagehot, who explained that the British political system is built upon a ‘double set’ of institutions. It is the dignified ones which “impress the many” while the efficient ones “govern the many”. The dignified or “theatrical” parts of the system play the essential role of winning and sustaining the loyalty and confidence of the nation; they help the state to gain authority and legitimacy which the efficient institutions can then utilise. “The use of the Queen in a dignified capacity, is incalculable”, he argued, “in that it strengthens the government through its combination of mystique and pageantry”.

Queen Elizabeth certainly excelled as head of the dignified institutions. While she may have lacked formal legal power, she used her “right to be consulted, right to encourage, right to warn” in weekly meetings with Prime Ministers throughout her 70 year reign. Most importantly, by publicly standing apart from the discussions and debates which gripped the “efficient institutions”, the Queen was able to transcend the political squabbles which so often divided the nation – she thereby represented a figure and institution which could unify warring classes and political groups.

It struck me today when I reviewed the passage in the Torah which describes the royal prerogative in Judaism (Devarim 17) that it contains absolutely no reference to any positive role that a monarch should play within the Jewish governmental system. The king does not legislate: Torah law is legislated and enforced by a system of Sanhedrin and its agents (as the Torah sets out in the immediately preceding section). Nor does the king act as a religious leader who conveys God’s word to the people or serve in the Mikdash – that was the job of prophets and priests. An appointed priest is also described as conducting matters of war. While Shmuel’s rebuke to the nation concerning the potential pitfalls of installing a king discloses considerable royal powers, the sages are divided as to whether he is describing legitimate legal rights or warning them of what monarchy would inevitably descend to. Certainly biblical kings assumed greater powers for themselves than those set out by the Torah – perhaps as was required by the realities of the nation at the time.

All that the Torah appears to positively require of a king is largely symbolic and ceremonial. He must write a Torah scroll and “read from it all of his days”. More significantly, a later passage is understood to task him with the commandment of “hakel”, which involves the public reading of the Torah to the entire gathered nation. The Torah emphasises that this includes young children who are incapable of understanding. They must still be included in this ceremonial gathering in which the king can symbolically be seen to unite the Jewish nation around the Torah’s teachings and values.

While the Torah therefore provides little positive guidance as to the role of a Jewish king, it certainly sets out rules as to what he should not do. As I analyse in the chapter of Judaism Reclaimedwhich contrasts Judaism’s approach to that of other political systems, the Torah introduced a revolutionary new concept in the Ancient Near East – that of a limited monarchy which was subject to the rule of law (not to mention frequent prophetic rebuke).

Not only is the Jewish king subject to the law –legal limits are imposed specifically to restrain any potential abuse of his position for the pursuit of personal wealth and glory. He may not amass horses – a symbol of ancient power and prestige – not may he marry many wives. The explicit intention is that Jewish monarchy is not an opportunity for the person seated on the throne to exploit the nation in order to gain personal status and luxury. Rather the kingship is to be a dignified institution – one which transcends the inevitable legal and cultural disputes which divide nations – and serves to unite the Jewish people around the moral and spiritual teachings of the Torah.

Queen Elizabeth was not a Jewish monarch and it was not her role to publicly represent the Torah and its teachings. Nevertheless, the dignity and selfless sense of duty to her nation which she constantly exhibited combined with her ability to transcend national division in order to refocus and inspire her nation may offer some insight into the sort of monarchy that the Torah envisaged.

First posted to Facebook 7 September 2022, here.

Religious coercion and Jewish theocracy

This week’s parashah opens with a requirement to appoint law enforcement officers. In Torah law, it is not only civil and criminal law which is regulated by governmental authorities, but also religious rules such as Shabbat observance.

How are we to relate to the Torah’s apparent endorsement of such a phenomenon? Can this passage be cited in support of those who campaign, for example, to close entertainment venues on Shabbat in Israel?

Setting aside the practical efficacy of adopting heavy-handed tactics in an attempt to increase religious observance among secular people – and the likely backlash that this would continue to provoke – certain Talmudic passages suggest that implementing such coercion in today’s society may not be correct from a religious perspective.

In its chapter which grapples with the ability of Jewish civil and criminal law to govern a society, Judaism Reclaimed cites a fascinating passage from the writings of Yeshayahu Leibowitz. The passage concerns the Eglah Arufah ceremony – also found in this week’s parashah – which was performed by the elders of a community which had suffered an unsolved murder. By carrying out this rite, the community is brought to realise the enormity of what has occurred and the sanctity of human life.

A Mishnah at the end of Sotah teaches, however, that “when the number of murderers increased, the Eglah Arufa ceremony was suspended”. This religious rite is meaningful only in a society for which murder is an abhorrent and exceptional occurrence. Once murder is commonplace, explains Leibowitz (and supported by Rabbi S. R. Hirsch), there is no need to pretend that we are shocked by an unresolved murder. In such a society there is a certain measure of hypocrisy in such a rite. The society must first be purged of daily occurrences of murder – only then is there reason to hold such a ceremony. A parallel tannaitic teaching informs us that “when adultery became common, the bitter waters [Sotah rites] were suspended”. Once again, concludes Leibowitz, if a society is saturated with sexual immorality, there is no reason to be shocked at the case of a suspected adulteress. One ought instead to try to reform the society.

Leibowitz then proposes that the spirit governing the abolition of the Eglah Arufah and Sotah rites contains an important lesson for today’s generation:

“In a society and state which are not based on the recognition of the obligation to observe the Torah, there is no reason to investigate whether some specific law of the state is in accordance with the halakha. By directing our thoughts and actions to just these details…we make the struggle for the Torah and its mitzvot into a caricature.

In a society and a state in which public life, as based on government and law, involves the operation of ports and airports on Shabbat, where hundreds of factories work on Shabbat with government permission, where there are government radio and television on Shabbat, the struggle against the opening of another movie house on Shabbat makes religion into a mockery. In a society where large parts within it, of all social classes, have ruled that “You will not commit adultery” and “there will not be a harlot” does not apply, and that such phenomena are even understandable – the requirement that marriage must be in accordance with halakha is only a desecration of the institute of religious marriage, a desecration of the Torah, and only serves to increase the number of mamzerim in Israel.

Mend the society, mend the state – and then you are permitted, and even obliged, to be concerned that the details within the framework of the society and the state should be in accordance with the demands of the Torah. As long as you do not struggle for a change of the image of the Jewish people, you cannot struggle for certain details in the lifestyle of the members of this community, and certainly not for details in the laws of that state, that community – which has not assumed for itself the Yoke of the Torah and mitzvot – is establishing for itself.”

It may be possible to bolster these powerful words from Yeshayahu Leibowitz with those of his prophetic namesake, who sharply rebuked Israel for their misplaced priorities in the First Temple era:

“You shall no longer bring vain meal-offerings, it is smoke of abomination to Me; New Moons and Sabbaths, festivals, I cannot [bear] iniquity with assembly. Your New Moons and your appointed seasons My soul hates, they are a burden to Me; I am weary of bearing [them]…Wash, cleanse yourselves, remove the evil of your deeds from before My eyes, cease to do evil. Learn to do good, seek justice, strengthen the robbed, perform justice for the orphan, plead the case of the widow.”

If God, as represented in the first chapter of Yeshaya, considers the ritual observances of a corrupt and unrighteous people to be unwelcome and burdensome, can we rightly expect our secular brethren to embrace a religion which is so regularly tainted with scandal and unethical behaviour? Rather than battling to coerce whole swathes of a resentful secular society to unwillingly curtail their Shabbat entertainment, perhaps the most potent tool of persuasion available to religious warriors is to concentrate on constructing a religious society which is so ethical, holy and righteous that is serves as a spiritual magnet for those searching to better themselves and live a refined and godly existence.

Tel Aviv light rail dispute here.

First posted on Facebook 28 August 2022, here.

When is it prohibited to recite Tehillim?

What is the least known and most counter-intuitive prohibition in Torah law? I’m pretty sure that one we read yesterday would come near the top of most people’s list – if, indeed, they were aware of it!

Among the list of Canaanite practices that the Israelites are warned to avoid upon entering the Land, we read of “chover chaver” – widely interpreted as uttering spells in order to charm animals and achieve other such manipulations of nature. All this sounds pretty innocuous, but Rambam and the Chinuch identify a Talmudic source (Shavuot 15b) which extends the prohibition to reciting Tehillim in order to attempt to heal a sick person!

The strongest expression of this law can be found in Rambam’s Hilchot Avoda Zara (11:12):

A person who whispers an incantation over a wound and recites a verse from the Torah, who recites a verse over a child so that he will not become scared, or who places a Torah scroll or tefillin over a baby so that it will sleep, is not merely considered to be [prohibited as] a soothsayer or one who cast spells. Such people are included among those who deny the Torah, because they relate to the words of Torah as if they are cures for the body, when, in fact, they are cures for the soul…

It is, however, permitted for a healthy person to read verses or chapters from Tehillim so that the merit of reading them will protect him and save him from difficulties and injury.

So in certain circumstances, reciting verses from Tehillim is utterly forbidden and equated with magical spells and charms while at other times it is a permitted form of protection. What exactly is the difference between these two categories?

The Sefer HaChinuch (#512) provides a further explanation. Referring to the permitted recitation of Tehillim performed by Rabbi Yehoshua ben Levi in the Gemara he writes that:

“The matter is not, God forbid, akin to chover chaver – though the sages have already said it is forbidden to heal oneself with words of Torah. Rather these chapters of Tehillim are recited because they contain words which can awaken the soul of one who comprehends them to place all his trust in God…meaning that the Torah did not prohibit a person from saying words of Torah which will inspire his soul to do good – so that this merit will protect him.”

There seems to have been an explosion of Tehillim recitation in recent times. Email circulars seeking participants to help complete the book of Tehillim in order to heal a sick person, large groups of people who attempt to complete the entire book themselves over the course of a month, week or even a day. Specific chapters which are highlighted as segulot to achieve various goals from livelihood to finding a spouse. Even writing centuries ago, the Ramchal complained of how popular perceptions of piety typically revolved around fasting and reciting numerous Psalms rather than intense character training and determining correct behaviour.

So how are we to approach Tehillim recitation in today’s Psalm-intensive era?

One form of advice is offered by the Meiri, who explains that the recitation of a verse is permitted when it is being used as a vehicle for one who cannot find the correct words through which to express their own personal prayers.

Fundamentally however, the mechanical recitation of verses in order to heal or achieve other personal goals reduces Tehillim to a spell-book through which one hopes to manipulate the physical world. In the view of the Gemara this does little more than replace idolatrous Canaanite charms with the book of Psalms. Despite prevailing perceptions of piety, such practices would appear to remain strictly forbidden under Torah law.

Importantly though, one who concentrates on the meaning of the words can be inspired by them to form a more profound and deeper relationship with God. This strengthened relationship can strengthen the providential protection that one can legitimately anticipate receiving and is not only permitted – it is a highly praiseworthy practice.

First posted to Facebook 20 August 2023, here.