Dear Rabbi Kornfeld:
My chavrusa and I are struggling with the concept of konsin oso lekipa.
First, it seems like a very painful death, and not at all consistent with other statements of the Gemara such as "beror lo misa yafa".
Second, the Gemara asks how we know the idea of kipa, and answers "temoses rasha ra" which, as we understood it, only means that a person who persists in aveiros is chayav misa. It does not say anywhere, nor does the Gemara give an explicit source. Rashi says that is it "vadai" halacha lemoshe misinai; does the Gemara say this? If not how did Rashi know it?
Finally, an accused murderer who does not have witnesses to his crime is punished with kipa. One way the Gemara explains this is when the witness contradict each other in a bedika type question (as opposed to a chakira question). The Gemara brings
that Ben Azai did bedikos be'uktzei te'einim. This is, if I recall correctly, considered meritorious to be so careful on bedikos.
But the result is that if they answer all the bedikos consistently, or there are no bedikos, he gets sayif for killing someone with eidim and hasraah. Because of the Av Bes Din's chumra of bedikos, this poor fellow has to go the kipa instead!
Yasher Koach for all your wonderful work
2) (a) "Temoses Rasha Ra" is from Tehilim 34:22. We say it every Shabbos morning in Pesukei d'Zimra.
(b) The Chidushei ha'Ran proves at length that Konsin Oso l'Kipah is a Halachah l'Moshe mi'Sinai. He starts with two possibilities that it could be compared to. Should it be compared to (1) the Gemara above (46a): "I have heard that Beis Din may strike and punish even though this is not stated in the Torah"; or should it be compared to (2) the Gemara below (82a) where Pinchas said to Moshe Rabeinu, "You taught us when you came down from Har Sinai that the zealous should strike someone who has relations with a Kusis"?
If we say (1) it would be an institution of the Chachamim, while if we say (2) it would be a Halachah l'Moshe mi'Sinai.
(c) The Ran writes that one has to say that it is not a Takanas Chachamim because the Gemara (46a) is referring to a temporary measure introduced according to what Beis Din sees is necessary for the needs of the hour. Beis Din is not capable of making a permanent Halachah of such a nature, because the Gemara (Shabbos 104a) states that a Navi may not introduce anything new once the Torah has been given. If a new Mitzvah cannot be made, then a permanent capital penalty, for someone who would otherwise not be liable, certainly cannot be initiated.
(d) On the basis of the above argument, the Ran writes that all the Mishnayos on 81b refer to Halchos l'Moshe mi'Sinai. He points out that the Gemara asks twice on 81b, "Where is this hinted?" -- once concerning Konsin Oso l'Kipah and once concerning the person who stole the "Kasva." We see that the Gemara understands that both Dinim are hinted to in the Torah. This means that they cannot be d'Rabanan, so they must be Halachah l'Moshe mi'Sinai.
(e) This all explains why Rashi writes that it is Vadai Halachah l'Moshe mi'Sinai. Chazal would not have the power to make a new Halachah for all coming generations, to inflict the capital penalty.
Bs'd I will answer the other questions later.
1) (a) The overriding factor here must be the fact that the Halachah l'Moshe mi'Sinai states that for the crimes mentioned in our Sugya, the Beis Din has permission to kill the offender only in a passive way. Possibly, Konsin l'Kipah is the least cruel way of doing this without actively killing him. However, it may be possible to make further comments to explain how the offences mentioned by our Sugya are in some ways more severe than the other capital crimes.
(b) We learn from Rashi (DH Temoses) that the Gemara is referring here to someone who is "Huchzak Rasha"; he has a Chazakah of being a Rasha since he has sinned three times. Rashi writes that he must be killed through "Ra'ah." The Toras Chaim here writes that "Ra'ah" means "Yisurin" -- suffering (see Mishlei 13:21: "Ra'ah will pursue sinners," and Tehilim 41:2: "On a day of Ra'ah Hashem will save him"). The Toras Chaim writes that this is why he is put inside the Kipah, so that he should die from Yisurin, in contrast to other people liable for the capital penalty, who are actively killed and die immediately. The Toras Chaim implies that "Beror Lo Misah Yafah" does not apply to someone who did the crime repeatedly.
(c) We find also in the Gemara (Yevamos 64b) that there is something worse about the person who is condemmed to the Kipah. Rebbi maintains that two times is considered a Chazakah, while Raban Shimon ben Gamliel says three times. The Gemara (end of 64b) states concerning Kipah that the Halachah follows Rebbi, that two times is sufficient. Rashi (DH Konsin) writes that since he has acquired a Chazakah of being a Rasha from the two offences, he is put in the Kipah if he does it a third time. The Rashba there writes that two times is sufficient because we want to eradicate wickedness from Yisrael. The Me'iri writes that because this person is liable for Kares, it is easier to put him to death.
(d) In fact there is a hint to the above ideas in the words of the Gemara here: "Keivan d'Ka Mevater Lah Nafshei" we bring him close to the death penalty. Rashi (DH d'Mevater) explains that this person has made himself Hefker for transgressions.
Here is what Rav Yosef Pearlman shlit'a once wrote for Kollel Iyun Hadaf in his reply to a similar question:
We will now deal with the issue that you raise of cruelty to humans. The answer is found in the Rambam, Hilchos Rotze'ach 4:8-9:
"One who murders, and there are not two witnesses who together see him, or one who murders in front of two witnesses but without a proper Hasra'ah (warning)... all of these murderers are placed into a 'Kipah'... and we do not do this to any of the other transgressors who are punishable with Misas Beis Din.... Even though there are transgressions that are more severe than murder, they do not involve a corruption of the social order as does murder. Even idolatry, and it goes without saying immorality or Shabbos desecration, are not like murder, for these transgressions are transgressions between man and Hashem, while murder is a transgression between man and his fellow man, and anyone who is guilty of this transgression is an absolute Rasha, and none of the Mitzvos that he did in all of his life can outweigh the severity of this sin."
However, in Hilchos Sanhedrin 18:4-5, the Rambam rules that the law of Kipah applies to all transgressions which a person flagrantly and repeatedly flouts. The Rambam here is in accordance with the Mishnah in Sanhedrin (81b), which first mentions that the law of Kipah applies to one who flagrantly repeats any sin, and then mentions that it applies as well to one who murdered without witnesses.
Rav Yerucham Fishel Perlow (in his comments to the Sefer ha'Mitzvos of Rav Sa'adyah Gaon, vol. 3, Pesichah ch. 22, p. 55) reconciles the two statements of the Rambam. He explains that the only case in which a person is placed in the Kipah when there are no witnesses to his transgression is the case of murder (and thus the Rambam writes this law in Hilchos Rotze'ach). For any other transgression for which there are no witnesses, a person is not put to death in this (or any other) manner. For other transgressions, the law of Kipah is applied only when there are witnesses to the act but the perpetrator did not accept their warning ("Hasra'ah") and thus cannot be executed with the prescribed death penalty (and thus the Rambam writes this law in Hilchos Sanhedrin). (See there for further discussion of this matter, and see also Imrei Chen on the Rambam, Hilchos Sanhedrin 18.)
Accordingly, Kipah is only for repeated, wanton transgressions, or for a single murder where the culprit would go free due to a technicality.
The Margoliyos ha'Yam in Sanhedrin (81b, #26) suggests why this punishment - which is more horrible than the usual capital punishments - is given in these cases. Quoting the Tal Techiyah, he explains that even though nothing can be done to rectify the horrible deed which the murderer committed, the murderer is punished with death for two basic reasons: to purge the world of a menace to society and prevent him from committing additional heinous acts of murder, and to serve as an example to all others to avoid such forms of conduct. This second reason applies even to a person whom we know will never kill again. For example, he killed his sworn enemy, and was prepared to die himself in order to take down his enemy. (When the witnesses warned him not to kill, they also warned him that he will be punished with death, and he nevertheless accepted that fate upon himself and went ahead with the murder.) Such a murderer is put to death, but a relatively "light" death penalty is given to him. In contrast, a person who is inherently evil and who kills others for the sake of profit, and who does so in the dark of night away from the eyes of witnesses, is a much greater sinner and thus deserves a much more severe form of death.
3) I wish to put forward the following theory to answer your question about the contradiction concerning Bedikos.
(a) We will start from the Mishnah in Makos 7a, where Rebbi Akiva and Rebbi Tarfon said that had they been on the Sanhedrin no one would ever have been put to death. Tosfos there (DH Dilma) writes that they would have done so many Bedikos that it would have been impossible for the witnesses not to contradict each other. The question asked is that according to our Sugya in Sanhedrin 81b, in the case of such contradictions the murderer would anyway be placed in the Kipah and die there, so why did Rebbi Akiva and Rebbi Tarfon say that nobody would have ever been killed by the Sanhedrin?
(b) To answer this question, it seems that one must say that what Rebbi Akiva and Rebbi Tarfon meant was that nobody would have ever been killed directly by the public administration of the death penalty of Beis Din. They agree that some would have died in the Kipah. However, we now have to understand what Raban Shimon ben Gamliel meant when he disputed with them (there in Makos 7a) and said that if Rebbi Akiva and Rebbi Tarfon would have done that, the amount of bloodshed in Yisrael would have been increased. Why would it have increased? Everyone agrees that the murderers would have died in the Kipah, and this would have been a sufficient deterrent for potential killers!
(c) The Teshuvos Levush Mordechai (Vinkler), end of volume 2, #144:2 (cited in Otzar Mefarshei ha'Talmud to Makos 7a, note 31), answers that it is well-known that murderers are afraid only of dying at the hands of Beis Din, with the Sayif, etc.. A natural death in prison -- even though it is a very difficult death -- does not deter them, and they think it may not happen anyway.
(d) This was the point of Raban Shimon ben Gamliel's argument with Rebbi Akiva and Rebbi Tarfon in the Mishnah in Makos 7a. Raban Shimon ben Gamliel argued that even though the latter two Tana'im agreed that the murderers would go into the Kipah, this will not deter the murderers, and bloodshed would increase as a result. However, Rebbi Akiva and Rebbi Tarfon have an answer to this argument. In Sanhedrin 45a, there is a dispute about which is worse, "Bizyoni d'Inshi" (disgrace in the eyes of people) or "Neicha d'Gufei" (prevention of physical pain to oneself)?
I suggest that Rebbi Akiva and Rebbi Tarfon maintain that physical pain is worse. Therefore, the Kipah is a deterrent. In contrast, Raban Shimon ben Gamliel maintains that disgrace is worse, so the murderers are not scared of the Kipah.
(e) Even if one finds the above theory somewhat bold, I think it at least makes it easier to accept that Ben Zakai (on 81b) maintains that making extra Bedikos (and thereby condemning more people to the Kipah) is not necessarily causing them more suffering. This is because Ben Zakai holds that Bizyoni d'Inshi is worse. By making the extra Bedikos he saved the murderers from the great shame of a public execution even though the physical pain is worse.